Recently there have been several lawsuits by consumers alleging fraud or violation of state consumer protection or food safety laws because of labeling or advertising that was allegedly inaccurate or misleading. There was the 11 inch “foot-long” sandwich, perhaps an easy case. Other lawsuits involve more complex questions, including the meaning of the term “orange juice,” and what the reasonable consumer can expect. In In re: Simply Orange Marketing and Sales Practices Litigation (W.D. Mo.), 13 cases were consolidated into one multidistrict action. Consumers alleged that the labels and advertising campaigns for Simply Orange, Minute Maid Pure Squeezed, and Minute Maid Premium orange juices misrepresented the nature of the products. The most specific representations included “100 percent pure squeezed,” “pure squeezed,” “not from concentrate,” and “never from concentrate.”
Fruit Juice Claims
In fact, the process of pasteurization, which involves heating to high temperatures, changes the flavor of the orange juice so that the manufacturer added orange oil, orange essence, and “other chemically engineered compounds” to improve the taste. The premium orange juice product was “dewatered,” i.e., concentrated, with the water restored after processing. The plaintiffs claimed that they paid premium prices for the products, which they would not have paid if they had known that the substances had been added. The court denied the manufacturer’s motion to dismiss the complaints. The statements on the labels and in advertising were not “mere puffery,” as the manufacturer argued; rather, they were quantified statements of fact. The truth or falsity of the statements could be determined empirically.
In a similar ruling, Trader Joe‘s labels on apple juice, cookies, and other products was found potentially misleading because the words “all natural” were belied by the presence of ascorbic acid, sodium acid pyrophosphate, xanthan gum, and vegetable mono and dyglycerides. But not all courts are as sympathetic to consumers, even in the Northern District of California.
In Veal v Citrus World, (N.D. Ala.), however, the court dismissed claims against the makers of Florida’s Natural orange juice for breach of warranty and breach of contract. The consumer alleged that he did not get the “benefit of his bargain” because the product was not pure or 100 percent juice. The court ruled that the plaintiff had not alleged any specific injury because he did not suffer any ill effects, and because the label stated that the juice was pasteurized. No reasonable consumer buying pasteurized, bottled orange juice from a store would believe that it was freshly squeezed. The plaintiff in this case did not allege any claim under the state deceptive practices law or any facts that would support a claim for misrepresentation, and the FDA had approved the label.
These manufacturers always argue that state law claims are preempted, i.e., the approval under the Food, Drug, and Cosmetic (FD&C) Act trumps any possible claims under state law. Then the court must determine whether the state law requirements are different from, or in addition to, the FDA requirements. If the label and the product both meet the FDA requirements, the plaintiff has no claim under state law. And the FD&C Act is not enforceable in a lawsuit by private citizens. So a consumer may pursue a labeling claim only if the same failures or defects violate both state and federal law. Courts also have rejected claims that statements describing a juice as promoting heart health and a health immune system were misleading due to the presence of lead and arsenic in the food because the substances did not exceed the levels permitted by the FDA, and the plaintiffs failed to allege that any injuries resulted from consuming them. There also was some question whether the lead or arsenic exceeded the amount that occurred naturally in the food.
The Petition to Regulate Poultry Products
The U.S. Department of Agriculture is now considering a petition filed by the Physicians Committee for Responsible Medicine (PCRM), asking the agency to expand its definition of adulteration and remove the term “wholesome” from the labels that the USDA affixes to poultry after inspection. The PCRM contends that much of the poultry supply is contaminated with poultry feces, which are spread from one bird to another during processing and are unlikely to be detected during the very brief inspection. Cross contamination is likely to occur during or between the scalding or the chilling processes. The petition states that the USDA’s current policy requires removal of visible feces, but when the poultry undergo scalding en masse, and workers quickly remove feathers and intestines, look them over and pass them on for the chilling bath, some visible contaminants will be missed, and even more will not be cleaned or removed because it is not visible to the naked eye. Therefore, PCRM believes that the labels on meat and poultry should disclose that the products are contaminated with feces. Do you think the reasonable consumer would want to know?