Product Liability Without Personal Injury: Food, Supplement And Other Labeling Claims

Article by Joanne M. Gray , Richard A. Oetheimer and Nilda Tulla-Isidro 1

Product liability lawsuits in the food and supplement industry have traditionally arisen in the personal injury context, where the plaintiff generally alleges that the ingestion of the product caused his or her injury. There is a new type of products case on the rise, however, that does not focus solely on personal injury. Instead, plaintiffs' focus is on alleged misrepresentations made in food and supplement labeling. These lawsuits, often brought under state consumer protection laws prohibiting deceptive conduct, seem to be increasingly attractive to plaintiffs' counsel because such claims eliminate the requirement to prove causation, thus greatly simplifying the case from plaintiffs' perspective. Additionally, some state laws do not even require that plaintiffs prove reliance on the allegedly misbranded label, making class action certification significantly less cumbersome.

As plaintiffs begin to increasingly bring these class action lawsuits – which can sometimes result in sizable settlements – food and supplement companies need to become aware of the types of claims brought, their potential defenses and steps that can be taken to avoid these lawsuits. This article provides a broad overview of the types of claims brought in these consumer class action cases, as well as options for responding to such lawsuits.

The Federal Food, Drug, and Cosmetic Act of 1938 ("FDCA") prohibits the sale or distribution of misbranded foods. Under Section 343(a), a food is misbranded if "its labeling is false or misleading in any particular." The term "misbranded" under the FDCA operates as the functional equivalent of "deceptive" under state laws. Traditionally, mass torts have not qualified for class action treatment due to the individual issues surrounding the particular injury and causation of the injury. Claims based on allegedly deceptive labeling, however, may at least arguably be more amenable to class certification, especially if proof of plaintiffs' reliance on the label is not a required element. Obtaining class certification facilitates plaintiffs' counsel's road to negotiating settlements with potentially significant legal fees awarded to class counsel. And defendants face the threat of significant potential liability exposure in statewide class actions.2

Claims Targeted

"All Natural" and "Healthful" Claims

Among the consumer class action claims that plaintiffs bring alleging deceptive labeling, some of the most common involve claims that a food is deceptively labeled as "all natural," "nutritious," or "healthful." American consumers have been increasingly purchasing products that claim to have "all natural" ingredients. Although the FDA has not specifically defined what foods qualify as "natural," a 1993 regulation states that use of the term "natural" on a food label is not misleading when "nothing artificial or synthetic . . . has been included in, or has been added to, a food that would not normally be expected to be in the food."3 Warning letters have also shed some light on what the FDA considers "natural." For example, in November 2011, the FDA issued a warning letter to Alexia Foods, over its "all natural" claim on a Roasted Red Potatoes & Baby Portabella Mushrooms product, which contained the synthetic chemical preservative disodium dihydrogen pyrophosphate.4 The synthetic chemical preservative was an additive that the FDA said "would not normally be expected to be in the food."5

Lawsuits challenging "all natural" claims frequently...