Food Forensics in Class Action Litigation: The Race between Pleading Standards and Technology

Abstract

This Article examines the emerging use of “food forensics” to discover injury in class action litigation. Based on increased public interest in what goes inside food, plaintiffs have begun relying on statistical and chemical testing to verify label claims. The test results often spur producers to re-examine their products, but may also raise plausibility concerns under the veneer of science and deny consumers data they need to make informed decisions about food. Drawing on examples ranging from olive oil to multivitamins, and canned octopus to pet food, I show how product testing in litigation represents a race between the resolving power of test results and slower-moving interpretation of pleading standards. I then propose a framework for navigating testing claims based on traditional case screening tools and statistical principles.