WHAT IS IN YOUR FOOD?
FOOD LABELING REGULATION AND
LITIGATION
*********
By: Michael R. Reese
In the last five years, there has been an
explosion in the number of food cases filed
throughout the United States..
The reasons are manifold:
•
There is an increased awareness of food related illnesses and societal problems as
reflected in the media and other sources:
– Michael Moss’ “Sugar, Fat, Salt”
– Various works by Michael Pollan and others.
– Movies such as “Fast Food Nation”; “Food, Inc.”; and “Super-Size Me”
– Even Science Fiction: the Maddaddam Trilogy by Margaret Atwood and the
Wind-Up Girl by Paolo Bacigalupi
The common theme seems to be one
of a growing mistrust and distrust of the
food system and a question of whom
should control that system.
As a result, the courts and other areas of
law (state and federal legislative bodies)
have become arenas for this debate:
• Justice is the tolerable accommodation of the conflicting
interests of society, and I don't believe there is any royal road to
attain such accommodation concretely. ~Judge Learned Hand
• Some circumstantial evidence is very strong, as when you find a
trout in the milk. ~Henry David Thoreau
Motions to Dismiss
Courts tend to allows these cases to proceed
past a motion to dismiss:
• Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir. 2008):
“[T]hese laws prohibit not only advertising which is false, but
also advertising which, although true, is either actually
misleading or which has a capacity, likelihood or tendency to
deceive or confuse the public….[C]ourts have recognized that
whether a business practice is deceptive will usually be a
question of fact not appropriate for decision on demurrer.”
See also Ackerman v. Coca-Cola Co., 2010 WL 2925955 (E.D.N.Y. July 10,
2010)(adopting Williams v. Gerber for New York claims)
Class Certification is the Real Battleground
• Many of the food cases are brought as class
actions.
• Class actions are typically governed by Federal
Civil Procedure Rule 23, and, as a result, must
meet specific requirement to proceed as a
class action.
• This can present several challenges:
Ascertainability
• Courts have struggled with this concept.
- Carrera v. Bayer Corp.,
727 F.3d 300 (3dCir. 2013)
- Karhu v. Vital Pharmaceuticals, Inc.,
2015 WL 3560722 (11th Cir. June 9, 2015)
- Mullins v. Direct Digital, LLC,
795 F.3d 654 (7th Cir. 2015)
ACERTAINABILITY (continued)
Lilly v. Jamba Juice Co., 308 F.R.D. 231
(N.D. Cal. Sept. 18, 2014):
•
(“Few people retain receipts for low-priced goods, since there is little possibility they will
need to later verify that they made the purchase. Yet it is precisely in circumstances like
these, where the injury to any individual consumer is small, but the cumulative injury to
consumers as a group is substantial, that the class action mechanism provides one of its most
important social benefits. In the absence of a class action, the injury would go unredressed.”)
citing Mitch Hedberg, Minibar, on Strategic Grill Locations (Comedy Central Records, 2003).
See also Receipt for Donut - Mitch Hedberg at
https://www.youtube.com/watch?v=gWx6uA5aCrE
Damages
Compare:
Brazil v. Dole Packaged Foods, LLC, 2014 WL 2466559
(N.D. Cal. May 30, 2014) (certifying damages class)
Brazil v. Dole Packaged Foods, LLC, 2014 WL 5794873
(N.D. Cal. Nov. 6, 2014) (decertifying damages class)
Compare:
Jones v. ConAgra Foods, Inc., 2014 WL 2702726 (N.D. Cal.
June 13, 2014) (denying certification of damages class)
In re Conagra Foods, Inc., 90 F.Supp.3d 919 (C.D. Cal. Feb.
23, 2015) (certifying damages class)
Injunctive Relief and Standing
In re Conagra Foods, Inc., 90 F.Supp.3d at 919:
“Applying Article III's requirements, the court agrees…that a plaintiff does not lack
standing simply because he has learned that a label is misleading and therefore will
not be fooled by it again. Rather, a plaintiff lacks standing if he has not express[ed] an
intent to purchase the products in the future.....The court concludes that none of the
named plaintiffs has standing to sue for injunctive relief. It declines to certify classes
under Rule 23(b)(2) as a result.”
Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523, 533 (N.D. Cal. 2013):
“Were the Court to accept the suggestion that plaintiffs' mere recognition of the
alleged deception operates to defeat standing for an injunction, then injunctive relief
would never be available in false advertising cases, a wholly unrealistic result. If the
Court were to construe Article III standing for FAL and UCL claims as narrowly as the
Defendant advocates, federal courts would be precluded from enjoining false
advertising under California consumer protection laws because a plaintiff who had
been injured would always be deemed to avoid the cause of the injury 534 thereafter
(‘once bitten, twice shy’) and would never have Article III standing.”
Issues with Use of the Term “Natural”
• Consumer Reports has called for a ban of the term natural to describe
food products:
“Due to overwhelming and ongoing consumer confusion around the
natural food label, we are launching a new campaign to kill the
natural label because our poll underscores that it is misleading,
confusing, and deceptive…We also don’t believe it is necessary to
define natural when there is already another label—organic—that
comes much closer to meeting consumer expectations and is
accompanied by legal accountability.”
See “End the confusion over the term 'natural' on food labels -Consumer Reports calls for a ban
on this misleading word”(quoting Urvashi Rangan, Ph.D., executive director of the Consumer
Reports Food Safety & Sustainability Center) available at
http://www.consumerreports.org/cro/news/2014/07/end-the-confusion-over-the-term-naturalon-food-labels/index.htm
• Not surprising, given the consumer confusion, a number of class actions
and other lawsuits have been brought regarding use of the term natural.
Issues Regarding “Natural” (continued)
• On November 10, 2015, the FDA stated it
would take comment on whether it should
become involved in this area:
“Specifically, the FDA asks for information and
public comment on questions such as:
- Whether it is appropriate to define the term “natural,”
- If so, how the agency should define “natural,” and –
- How the agency should determine appropriate
use of the term on food labels.”
http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/
ucm456090.htm.
The FDA has looked into this before,
but decided not to become involved
• [W]e said, back in 1991, that we were considering establishing a
definition for this term. We said that we believed that defining the
term “natural” could remove some ambiguity surrounding use of
the term that results in misleading claims.
• We invited comments on several questions, including whether we
should establish a meaningful definition for “natural” so that this
term would have a common consumer understanding, and whether
it should prohibit “natural” claims entirely on the grounds that they
are false or misleading. In the preamble to the subsequent final
rule, we noted that we had received many comments on the
subject, but that “[n]one of the comments provided FDA with a
specific direction to follow for developing a definition regarding the
use of the term ‘natural.’ ” We stated that at that time we would
not be engaging in rulemaking to define “natural”…
http://www.regulations.gov/#!documentDetail;D=FDA-2014-N-1207-0001
Questions by FDA for Comment Include:
•
Should we define, through rulemaking, the term “natural?” Why or why not?
•
Should we prohibit the term “natural” in food labeling? Why or why not?
•
If we define the term “natural,” what types of food should be allowed to bear the term
“natural?”
•
Should only single ingredient foods, e.g., bottled water or bagged spinach, be able to bear
the term? Why or why not?
•
Should manufacturing processes be considered in determining when a food can bear the
term “natural?” For example, should food manufacturing processes, such as drying, salting,
marinating, curing, freezing, canning, fermenting, pasteurizing, irradiating, or hydrolysis, be a
factor in defining “natural?”
•
Should the term “natural” only apply to “unprocessed” foods? If so, how should
“unprocessed” and “processed” be defined for purposes of bearing the claim? If the term
natural should include some processing methods, what should those methods be? In making
determinations related to processing, should one look at the process to make a single
ingredient of a food, or does one evaluate the process done to the formulated finished food
product (or both)?
Additional Areas Sought by FDA for Comment:
•
We are interested in any data or other information to suggest that consumers
associate, confuse, or compare the term “natural” with “organic” (the USDA
Agricultural Marketing Service administers the National Organic Program, which
enforces laws and regulations regarding certified organic foods). We are interested
in data and other information about consumers' understanding of foods labeled
“natural” versus “organic.” Is the term “natural” on food labels perceived by
consumers the same way as “organic?” Or is “natural” perceived by consumers to
be “better” (or not as good as) “organic?” Please provide consumer research or
other evidence to support your comment.
•
We are interested in any data or other information to suggest that consumers
associate, confuse, or compare the term “natural” with “healthy.” We have a
regulation that defines the term “healthy” when used as an implied nutrient
content claim with specific conditions related to the food's nutrient profile that
must be met in order to use the term on the label or in labeling of a food (see §
101.65(d)). We are interested in data and other information about consumers'
understanding of foods labeled “natural” versus “healthy.” Is the term “natural” on
food labels perceived by consumers the same way as “healthy?” Or is “natural”
perceived by consumers to be “better” (or not as good as) “healthy?” Do
consumers view “natural” and “healthy” as synonymous terms? Please provide
consumer research or other evidence to support your comment.
http://www.regulations.gov/#!documentDetail;D=FDA-2014-N-1207-0001
Further request by FDA:
- What can be done to ensure that
consumers have a consistent and
accurate understanding of the term
“natural” in food labeling to ensure
that it is not misleading?
http://www.regulations.gov/#!documentDetail;D=FDA-2014-N-1207-0001
In Conclusion
"The good of the people is the
greatest law."
- Marcus Tullius Cicero
“It is discouraging how many
people are shocked by honesty
and how few by deceit.”
- Noel Coward
Questions or Comments?
Feel free to contact at:
Michael R. Reese
REESE LLP
100 West 93rd Street, 16th Floor
New York, New York 10025
(212) 643-0500
[email protected]