Food labeling litigation: The usual defenses

It’s something that’s gathered an immense amount of attention over recent years, with more and more food manufacturing companies becoming susceptible to labeling litigation.

The rules have been strengthened, there’s no doubt about that, and you only have to listen to some of the views from Jack Bonner to understand the changes from an “insider’s perspective”. There’s most definitely some contrasting viewpoints and from the point of view of a manufacturer, it’s getting to the point where it’s all about forming a suitable defense.

At the moment, any litigation filed tends to fall into a couple of categories. The first comes in the form of misleading labeling, which in plain and simple terms uses statements which are misleading. It’s in these cases where a company might be targeted if they use a phrase such as “all natural” when in reality, the product isn’t.

The second form of litigation revolves a statement which is completely false. This is much easier to describe, and ultimately prosecute, as it happens when a company puts inaccurate details on their packaging. Most of the time this will be related to the nutritional values of the product.

We’re not going to go into each of the ways in which claims can arise through food labeling cases – as the differences between states make it difficult to cover in a short guide. Instead, we’re going to look at the usual methods of defense open to companies who are becoming targeted more than ever before by food labeling claims.

Was the plaintiff harmed?

Sure, a claim might technically be “misleading”, but a defense which is being commonly used questions whether the plaintiff was harmed by this claim.

Unsurprisingly, this is a very difficult issue to prove and is therefore being relied upon more and more by manufacturers who are faced by such claims.

Did the plaintiff rely on the labeling?

In some ways, this is very similar to the first method of defense we spoke about. A lot of companies are now starting to respond to these claims by firstly questioning whether the plaintiff actually purchased the product – as in most cases there’s a chance that this didn’t occur.

Even if a purchase was made, the next element of the question is to see whether or not they relied on the labeling in their purchasing decision. Once again, it can be hard for a plaintiff to prove, which means that this is another popular form of defense.

The FDA place lawsuits on hold

On first look, this might seem to be one of the least likely forms of defense. However, if you turn to California, it’s something which every manufacturer in the state will be relying on.

In March 2016, it was decided that all food labeling claims in the state would be placed on an indefinite hold as the FDA investigate the term “natural”. In other words, they are investigating just how a product should be classed as “natural” and during this time, defendants are even able to argue for a dismissal of the suit.

Suffice to say, now it’s happened in one state, don’t be surprised if it occurs in others in the future and becomes an even more common form of defense.