The United States Court of Appeals for the Third Circuit recently affirmed the District of New Jersey’s dismissal of proposed class action plaintiffs’ food labeling misrepresentation claims as preempted by federal regulations. In Young v. Johnson & Johnson, No. 12-2475, 2013 WL 1911177 (3d Cir. May 9, 2013), the court held plaintiffs’ claims that Johnson & Johnson had misrepresented that its butter and margarine substitutes, “Benecol®,” contained no trans fat, and misrepresented that its Benecol® products were proven to reduce cholesterol, were preempted by the Nutrition Labeling and Education Act (“NLEA”). The NLEA is codified as part of the Food Drug and Cosmetic Act and specifically addresses certain food and beverage labeling requirements, including nutrition information requirements on product labels (21 U.S.C. § 343(q)) and requirements for characterizations concerning health-related conditions on product labels. 21 U.S.C. § 343(r). The NLEA expressly preempts state-law food labeling claims that seek to impose requirements that are “not identical to the requirement[s]” established in relevant provisions of the NLEA. 21 U.S.C. § 343-1.
In Young, the Third Circuit found that, because the plaintiffs’ state-law claims sought “to impose standards that are not identical to those set forth in [FDA] regulations,” the claims were expressly preempted by the NLEA. Specifically, the Third Circuit found that, pursuant to FDA regulations, if a food serving contains less than 0.5 grams of trans fat, manufacturers are permitted to represent on the product labeling that their product contains no trans fats. Furthermore, the court found that the cholesterol claims on the Benecol® label “are authorized by FDA regulations and are not false or misleading.”
This Third Circuit case adds to some recent success of food manufacturers in asserting federal preemption as a defense to lawsuits challenging substantiation of food and beverage labeling claims. Increasingly, it appears that defendants can obtain dismissals of claims alleging misrepresentation of a food’s health benefits if those claims are expressly allowed by FDA regulations.
The Seventh and Ninth Circuits have likewise found plaintiffs’ food labeling claims preempted by the NLEA. Turek v. General Mills, Inc., 662 F.3d 423 (7th Cir. 2011) (claims that the defendants’ labeling for their “chewy bars” should have disclosed an allegedly non-natural fiber ingredient, inulin, are preempted by the NLEA); Carrea v. Dreyer’s Grand Ice Cream, Inc., 475 F. App’x 113 (9th Cir. 2012) (manufacturer’s “0g Trans Fat” statement on ice cream product packaging was authorized by the FDA because the product contained less than 0.5 grams of trans fat per serving). Several district courts also have found food labeling claims preempted by the NLEA. However, some courts have held that certain state-law consumer protection claims are not preempted because they parallel or mirror the labeling requirements under federal statutes and regulations.
In situations where there are no FDA regulations directly on point, for example descriptive marketing terms for food and beverages, preemption is not as strong of a defense as it is against claims related to requirements expressly governed by the NLEA and other federal laws. For example, plaintiffs commonly bring lawsuits alleging that certain foods are deceptively labeled as “all natural,” “nutritious,” or “healthful.” Lawsuits challenging these types of claims have frequently involved products containing ingredients like high fructose corn syrup, alkalized cocoa, factory-made ascorbic acid, and genetically modified organisms (“GMOs”). For example, plaintiffs sued Snapple Beverage Company alleging its products labeled “all natural” contained high fructose corn syrup.[i] Similarly, consumers have brought claims against Frito Lay for its “all natural” claims on products (including Tostitos, Sun Chips, and bean dip) allegedly containing genetically modified corn or soy, as well as hexane-extracted soybean oil.[ii] Other products targeted for purportedly containing GMOs have included Green Giant products.[iii] Products as varied as cookies, smoothie kits, canned tomatoes, cocoa, and cooking spray have been the targets of consumer class actions challenging their labeling as “natural” based on a variety of allegedly non-natural ingredients. Potential strategies for food companies defending against these types of lawsuits include challenging the plaintiffs’ standing to bring the lawsuit; invoking common sense and plausibility to challenge the sufficiency of plaintiffs’ claims; and asserting that the FDA has primary jurisdiction over the claims.
These defenses, however, have not been uniformly accepted by all courts. For example, in a recent decision, the Northern District of California ruled against manufacturer General Mills’s primary jurisdiction argument in a class action involving claims that General Mills deceptively labeled its granola products as “natural.”[iv] The district court reasoned that, because the FDA has declined several requests to promulgate regulations or issue a policy statement regarding the use of the word “natural” on food product labeling, “the FDA has signaled a relative lack of interest in devoting its limited resources to what it evidently considers a minor issue, or in establishing some ‘uniformity in administration’ with regard to the use of ‘natural’ in food labels.” Therefore, although it was a “close question,” the court found, “any referral to the FDA would likely prove futile” and declined to dismiss plaintiffs’ claims on the basis of primary jurisdiction.
As the body of case law concerning food labeling continues to grow, food industry companies should continue to monitor what state-law claims can be defeated with various defenses, including federal preemption and primary jurisdiction.
[i] First Amended Class Action Complaint & Jury Demand, Weiner v. Snapple Beverage Corp., No. 07 Civ. 8742 (DLC), 2007 WL 4837756 (S.D.N.Y. Nov. 20, 2007).
[ii] Class Action Complaint, Deaton v. Frito-Lay N. Am., Inc., No. 1:12-civ-01029-SOH (W.D. Ark. Apr. 2, 2012); Class Action Complaint, Altman v. Frito-Lay N. Am., Inc., No. 0:12-cv-61803-WJZ (S.D. Fla. Sept. 13, 2012).
[iii] Class Action Complaint, Cox v. Gen. Mills, Inc., No. 3:12-cv-06377-WHA (N.D. Cal. Dec. 17, 2012).
[iv] Janney v. General Mills, No. C 12-3919 (N.D. Cal. May 10, 2013)