Food Labeling Litigation: Exposing Gaps in the FDA's Resources and Regulatory Authority

Abstract

Since 2011, consumer advocacy groups and plaintiffs have filed more than 150 food labeling class action lawsuits against food and beverage companies. According to a recent study, the number of these consumer protection class actions brought in federal court climbed from 19 cases in 2008 to more than 102 in 2012. The majority of these cases have been filed in the U.S. District Court for the Northern District of California, now referred to as the “Food Court.” This surge in lawsuit filings has led some legal commentators to suggest that “food is replacing tobacco as the new regulatory and class action target.” This “unprecedented surge” of deceptive labeling and advertising lawsuits against the makers of products such as Naked Juice, Fruit Roll-Ups, Bear Naked Granola, and Wesson Oil, reveals a trend of regulation by litigation — that is, a turning over of food labeling issues to the courts in light of a lax regulatory system. Although the Food and Drug Administration (FDA) is charged with regulating food labeling, plaintiffs’ attorneys are seeking to fill a void in the FDA’s regulatory authority and enforcement of food labeling laws. This paper provides an overview of the recent food labeling litigation and explores the reasons for this flood of litigation. However, this paper does not evaluate the merits of the lawsuits. Although none of these food labeling lawsuits have yet been adjudicated, the litigation has exposed problems with the FDA’s regulatory oversight of food labeling. The lawsuits represent attempts by consumer groups and plaintiffs’ attorneys to influence marketing behavior of food companies — a task more properly undertaken by the FDA.

Keywords: food labeling, class action lawsuits, FDA, regulatory authority