Food Labeling Litigation

In recent months, court opinions on food labeling have been published at a fast pace. According to articles by Inside Counsel and Forbes, this uptick can be credited to manufacturer’s increased use of buzz terms such as “all natural” with consumers’ increased desire to know more about their food and make healthy food choices. In today’s world, “healthy” goes beyond calorie counting and overall fat grams, and as manufacturers try to increase sales, cases against manufacturers are on the rise. Forbes recently discussed this food labeling litigation, arguing that attorneys were the driving force behind the popularity of the cases. Despite their popularity, food labeling cases have a variety of barriers to overcome, such as preemption issues or reliance on the FDA’s vague definition of “natural” or “unsalted.” 

Recently claims in a putative class action alleging that a food company’s soy yogurt labels regarding the use of evaporated cane syrup as an ingredient did not comply with certain requirements of the Food, Drug, and Cosmetic Act (FDC Act) were dismissed without prejudice because the court found it appropriate to defer to the FDA’s authority and expertise (Hood v Wholesoy & Co.). The court found the doctrine of primary jurisdiction was applicable, because the claims were based on areas of regulation that the FDA had not settled.

California, whose laws regarding false and misleading labeling are identical to the federal Food, Drug and Cosmetic Act, has been a hotbed of activity for food labeling cases. In January of this year, it denied a motion to dismiss filed by Trader Joe’s in a case involving its store brand apple juice which is labeled as “all natural” (Larsen v Trader Joe’s Company). Tamar Davis Larsen and Aran Eisenstat filed a class action suit alleging that Trader Joe’s unlawfully labels, markets, and sells six products as “All Natural” and “100% Natural,” when they allegedly contain one or more synthetic and/or nonnatural ingredients as defined by the Food and Drug Administration. Although Trader Joe’s contended that all juice-related claims are preempted by an express provision in the federal Food, Drug, and Cosmetic Act (FDCA) (21 U.S.C. sec. 301), the court determined that California law and the FDCA have identical prohibitions on false and misleading labeling and federal law does not prohibit differentiating between naturally-occurring and synthetic vitamins. The court denied Trader Joe’s motion for judgment on the pleadings as it related to the apple juice.

The Northern District of California recently denied a plaintiff’s motion for a preliminary injuction that sought to enjoin a food manufacturer from selling, advertising, and distributing Chobani Greek Yogurt products and ordering the company to remove and recall all such products from their distributors and retailers (Kane v Chobani). The motion was denied because the alleged injured party could not demonstrate that irreparable harm was likely in the absence of the injunction; however, the court found the plaintiff was likely to succeed on the merits of her claims regarding the use and labeling of the ingredient evaporated cane juice.

Another hot area of food litigation centers around indications of fat and calories on food labels. In July, a consumer’s class action complaint against Unilever for its alleged fraudulent labeling on a spray butter product called “I Can’t Believe It’s Not Butter” was dismissed because the various allegations were insufficiently pled or preempted (Pardini v Unilever United States Inc.). The consumer, Kym Pardini, alleged that the labeling indicating 0 fat and 0 calories on the spray was deceptive because an entire bottle contains 771 calories and 82 grams of fat per bottle.  Pardini asserted causes of action that the Northern District of California ruled were either preempted by the federal Food Drug and Cosmetic Act (FDCA) or insufficiently pled.