Food Fight: More Labeling Litigation in 2017

But FDA rules are unclear as to what these terms mean, which will likely spur more labeling litigation in 2017. Here we look at three main reasons for the anticipated increase in litigation.

Unclear Labeling Requirements

Currently, there are labeling-related lawsuits over frozen pizzas, jarred cucumbers, frozen fruit, coconut oil, coffee grounds, and pasta, to name just a few. Ambiguities in FDA regulations are in part fueling this litigation.

Here’s one example: the FDA regulates what types of additives are considered preservatives, but it does not provide guidance about how manufacturers should label a product when a preserving agent is used for another purpose, like flavor. One current lawsuit alleges that certain frozen pizzas are labeled as having “no preservatives,” even though the pizzas contain an additive, citric acid.

Manufacturers argue that this label is not misleading. Citric acid is a commonly used, FDA-allowed preservative in many foods. In the case of these pizzas, manufacturers argue that citric acid is added as a flavoring, not as a preservative—after all, frozen pizzas are preserved by being frozen.

In another case, a consumer alleged that certain frozen berry products were misleadingly labeled as “all natural fruit.” The allegations were based on the fact that the frozen berries were mixed with supposedly synthetic versions of citric acid and ascorbic acid (known as Vitamin C). Ascorbic acid, like citric acid, is a naturally occurring substance that is sometimes used as a preservative, but may also be used for its flavor and antioxidant properties.

The court dismissed this case based on the manufacturer’s argument that its “all natural” labeling referred to the actual fruit only, and that its suppliers used naturally synthesized citric and ascorbic acids in its products.

The Trump Administration’s Anti-Regulatory Stance

The new administration has indicated that it is likely to take a relatively anti-regulatory position. One of President Trump’s frontrunners to take over as head of the FDA has already called for fewer FDA regulations regarding pharmaceuticals.

The new administration will likely have similar attitudes towards the FDA’s food regulations. In this context, consumers may file more lawsuits based on federal and state laws to fill the perceived gap left by the FDA.

Recent Plaintiff-Friendly Ninth Circuit Decisions

Just this month, the Ninth Circuit issued a decision affirming class certification in a case alleging that oil products were misleadingly labeled as “100% Natural” even though the oil contained bioengineered ingredients. The Ninth Circuit’s decision held that Federal Rule of Civil Procedure 23 does not have an “administrative feasibility” requirement, meaning a court does not have to deny class certification just because there may be better alternatives.

This decision will likely encourage plaintiffs to file more food-labeling class actions in the Ninth Circuit, which is already known as the “Food Court” for its high volume of food-related lawsuits.

Looking ahead, consumers will likely continue to bring labeling-related litigation until the FDA clarifies its regulations. But new regulations appear to be far off in the future. In 2015, the FDA published a request for comments on the use of the term “natural” in food labeling. But after the comment period closed in May 2016, the FDA did not issue any follow-up information or rulings on the use of “natural.” And regulations over the use of “no preservatives” or “preservative-free” are even more distant because the FDA has not yet issued a similar request for comments on the use of those terms in labels.