Expansion Of Liability In Product Labeling Cases

Summary

An unprecedented surge in consumer fraud lawsuits over the last several years has consumers and lawyers closely scrutinizing product labels and advertisements. While many of these claims challenge the veracity of "Organic," "Healthy," and "100%" claims on labels, several states are affording new opportunities to attack ingredient labels under state consumer fraud and labeling statutes—an area that federal courts have traditionally found to be preempted with no private right of action.

In Depth

An unprecedented surge in consumer fraud lawsuits over the last several years has consumers and lawyers closely scrutinizing product labels and advertisements. While many of these claims challenge the veracity of "Organic," "Healthy," and "100%" claims on labels, several states are affording new opportunities to attack ingredient labels—an area that federal courts have traditionally found to be preempted by the Food and Drug Administration (FDA) with no private right of action. Certain state statutes are changing that landscape.

The Nutrition Labeling and Education Act (the NLEA or the Act), which amended the Federal Food, Drug, and Cosmetic Act (the FDCA) to give the FDA authority to require nutrition labeling on virtually all food products (Nutrition Labeling and Education Act, 21 U.S.C. § 343 et seq.), provides no private right of action for individuals to enforce the provisions of the Act. Furthermore, the NLEA contains a preemption provision mandating that no state law claim can impose any food labeling requirement that is "not identical" to the Act's own requirements. (21 U.S.C. § 343-1(a).) Despite the preemption language, plaintiffs often attempt to bring consumer fraud actions based on violations of these federal ingredient label requirements. The vast majority of case law in this area has held that such consumer fraud actions are preempted by the FDA and that there is no private right of action for consumer fraud based on this theory. Because the language and requirements for liability of consumer fraud statutes in most states are "not identical" to the FDA regulations, courts presiding over an individual state law action alleging false or misleading labeling have traditionally dismissed plaintiffs' claims, finding that they are preempted by federal law. See, e.g., Stansfield v. Minute Maid Co., 124 F.Supp.3d 1226 (N.D. Fla. 2015).

However, a number of states have enacted legislation that seems to complicate this federal preemption...