Third Circuit Holds That State-Law Based Food Mislabeling Claims Are Preempted

Product Liability

Over the past several years, the body of case law concerning the labeling, marketing, and advertising of food and beverages has steadily grown. A recent decision by the United States Court of Appeals for the Third Circuit, while not precedential, has added to this body of law. On May 9, 2013, the Third Circuit affirmed the District of New Jersey's dismissal of a putative class action involving food labeling misrepresentation, providing another example of the strength of "federal preemption" as a defense to misrepresentation claims.

In Young v. Johnson & Johnson, No. 12-2475, 2013 WL 1911177 (3d Cir. May 9, 2013), plaintiffs alleged that Johnson & Johnson's butter and margarine substitutes, Benecol® Regular Spread and Benecol® Light Spread (collectively "Benecol"), were falsely and misleadingly labeled. The alleged misrepresentations pertained to J&J's assertions that Benecol contained no trans fat and had cholesterol-lowering capabilities. The plaintiffs asserted "labeling misrepresentation" rather than "false labeling" because Benecol does in fact contain small amounts of trans fat. But the court found that the federal Food, Drug and Cosmetic Act ("FDCA"), as amended by the Nutrition Labeling and Education Act ("NLEA"), expressly preempted the plaintiffs' suits. The NLEA governs food nutritional labeling and expressly preempts state-imposed nutrition labeling requirements. As such, states cannot impose requirements for nutrition labeling of food or beverages or for nutritional or health-related claims that are not "identical" to the requirements set forth in the Act.

The United States Food and Drug Administration ("FDA") regulations allow manufacturers to make "nutrient content claim[s]" for their products, such as "no trans fat," provided that the product contains less than 0.5 grams per serving and the label is not "false or misleading." 21 C.F.R § 101.13(b), 101.13(i)(3). Furthermore, in the interest of avoiding consumer confusion, the FDA regulations allow the manufacturer to make statements as to nutrient content based on per serving amounts, even if the overall nutrient content claims per product are not entirely accurate. Under these standards, the Third Circuit agreed with the District Court that the words "no trans fat" on the Benecol label were permissible and not misleading. The plaintiffs' attempt to challenge the nutrient labeling under state law was preempted by the regulations promulgated by the FDA. The...