Food Mislabeling Litigation And The Success Of Preemption And First Amendment Defenses

The past several years have seen an increase in the amount of litigation involving the labeling, marketing and advertising of food and beverages. Typically, the suits are filed under state consumer fraud statutes and allege that consumers would not have purchased the product or paid the price that they did had they known the truth behind the representations made. As a result of this litigation, a body of law regarding consumer protection claims premised on food mislabeling has begun to develop.

These lawsuits can be costly. For example, in 2010, after a period of intense litigation, The Dannon Company agreed to pay $45 million to settle a class action pertaining to its labeling of Activia yogurt. In related litigation, Dannon agreed to pay $21 million to settle claims brought by attorneys general from 39 states. The company also agreed to replace the phrases "clinically proven" and "scientifically proven" on its labels and advertisements for Activia and other related products with less-definitive language such as "clinical studies show." Dannon must also place qualifying statements on the products' labels and company's website that explain that the yogurt and other products are not intended to treat medical conditions, and that consumers eating the products will not see an immediate improvement to digestive health.

Much of the mislabeling litigation targets manufacturer claims that their product is "all natural," "trans fat free," or "clinically proven." Although some terms, such as "organic," are defined by regulations, there are no federal regulatory standards defining the terms "healthy" or "natural" as applied to food products. The U.S. Food and Drug Administration ("FDA") has defined "natural" only in the limited context of flavors. See 21 C.F.R. § 101.22. Otherwise, manufacturers are guided only by the FDA's informal policy statement that "natural" means that "nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food." See 58 Fed. Reg. 2302, 2407 (1993.)

Litigation has also been filed with respect to products that are marketed as being healthy but contain allegedly unhealthy ingredients, such as trans fat or high-fructose corn syrup. Beverage makers are a popular target, the allegations against them being that it is false and misleading to label beverages that contain high-fructose corn syrup as "all...