Naturally Confusing Consumers: Implied Federal Preemption of State Claims Regarding False and Misleading Food Product Labels

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By: Taryn DeVeau, Staff Member

Consumers have become increasingly conscious of eating nutritious food, and food product manufacturers have profited from consumers that confuse foods labeled “Natural” with those labeled “Organic.”[1] “Organic” foods have specific USDA certifying criteria, whereas “Natural” foods do not.[2] Consumers’ health conscience craze has created a $22.3 billion market niche for foods labeled “Natural,” resulting in an increase in class action lawsuits claiming such food labeling is false and misleading.[3]

According to Stephen Gardner, litigation director for the Center for Science in the Public Interest, “Natural” food labeling claims comprise the largest litigation area of food labeling claims, and this trend has been influenced by the failure of courts to find state claims preempted.[4] The failure to find preemption is largely a consequence of the FDA’s refusal to define the term “Natural.”[5] Currently, the FDA’s informal policy is still in place, which allows use of the term unless the food contains added color, artificial flavors, or synthetic substances.[6]

Some foods whose “Natural” status has been questioned include Snapple, Healthy Choice pasta sauce, Skinnygirl Margarita, Ben and Jerry’s, and Wesson cooking oils.[7] A recent lawsuit filed against Kashi claims the labels are intentionally misleading because they contain synthetic and unnaturally processed ingredients.[8] The alleged synthetic substances include “prescription drugs, irradiated substances, pesticides, and federally declared hazardous substances.”[9]

The Nutrition Labeling and Education Act (“NLEA”) of 1990 was added to ensure consistency with a national standard and to preclude states from adopting inconsistent requirements.[10] The NLEA contains an express preemption provision, 21 U.S.C. §343-1, providing that states must not have food labeling requirements that are not “identical” to the FDCA.[11]

“The NLEA states that it ‘shall not be construed to preempt any provision of State law, unless such provision is expressly preempted under [21 U.S.C. §343-1(a)] of the [FDCA].”[12] Courts have analyzed this section in different ways. Some courts have found the statement to mean that only express preemption is possible. The California Supreme Court stated that the “preemptive scope” of §343-1 was only intended to cover “the plain language of the statute itself.”[13] The court in Holk found that it is possible to find implied preemption based on “provisions of federal law other than the NLEA.”[14]

In Holk, the court found the claims against Snapple that its products were not “Natural” because they contained High Fructose Corn Syrup were not impliedly preempted because the FDA has not officially defined the term.[15] However, in Thomas Mason v. Coca-Cola Co., the plaintiff claimed that “Diet Coke Plus” is misleading because “Plus” indicates an added amount of vitamins and minerals.[16] The term “Plus” has been precisely defined in FDA regulations.[17] The court found that in order to find implied conflict preemption, more than just a regulation defining the term is necessary.[18] Here, even if the FDA defined the term “Natural,” it is not guaranteed courts would analyze the issue consistently. It is necessary for courts to resolve the uncertainty regarding implied preemption analysis of food labeling claims in order to benefit both food manufacturers and consumers.

[1] Bruce Silverglade and Ilene Ringel Heller, Food Labeling Chaos, The Case for Reform, Center for Science in the Public Interest, http://cspinet.org/new/pdf/food_labeling_chaos_report.pdfhttp://cspinet.org/new/pdf/food_labeling_chaos_report.pdf (last visited Dec. 29, 2011). Major Agribusiness Competing with Organics on the Cheap, “Natural” Food Products with Toxic Chemicals and GMOs Deceiving Consumers, The Cornucopia Institute, October 12, 2011, http://www.cornucopia.org/2011/10/cerealcrimes-pressrelease/ (last visited Dec. 28, 2011).

[2] Major Agribusiness Competing with Organics on the Cheap supra note 4.

[3] “Natural” Beats Organic in Food Sales According to Nielsen’s Healthy Eating Report, Nielsen Wire, http://blog.nielsen.com/nielsenwire/consumer/“natural”-beats-“organic”-in-food-sales-according-to-nielsen’s-healthy-eating-report/ (January 21, 2009); Ashby Jones, Is Your Dinner ‘All Natural’? Wall Street Journal, http://online.wsj.com/article/SB10001424053111903374004576580671156407598.html. (September 20, 2011).

[4] Julie A. Steinberg, Food Label Lawsuits: Manufactured Litigation or Consumer Protection?, Boomberg BNA, 40 PSLR 83, http://news.bna.com/psln/display/batch_print_display.adp.

[5] Ashby Jones, Is Your Dinner ‘All Natural’?, Wall Street Journal, http://online.wsj.com/article/SB10001424053111903374004576580671156407598.html. See Holk v. Snapple Bev. Corp., 575 F.3d 329, 333(U. S. App. 2009); See also 65 Food Drug L.J. 403 (2010).

[6] What is the meaning of ‘natural’ on the label of food?, U.S. Food and Drug Administration, http://www.fda.gov/AboutFDA/Transparency/Basics/ucm214868.htm (last visited Dec. 27, 2011).

[7] See Holk v. Snapple Bev. Corp., 575 F.3d 329, 333(U. S. App. 2009); See also Lockwood v. Conagra Foods, 597 F. Supp. 2d 1028, 1031 (N.D. Cal. 2009); Ashby Jones, Is Your Dinner ‘All Natural’?, Wall Street Journal, http://online.wsj.com/article/SB10001424053111903374004576580671156407598.html.

[8] Michael Bates v. Kashi, 2011 WL 3821651 at 1 (S.D. Cal. August 24, 2011).

[9] Id. at 2.

[10] Farm Raised Salmon Cases, 175 P.3d 1170, 1175 (Sup. Ct. Cal. 2008).

[11] 21 U.S.C. §343-1(a).

[12] In re FERRERO at 9.

[13] Farm Raised Salmon Cases at 1091.

[14] Holk at 336.

[15] Id. at 339.

[16] Thomas Mason v. Coca-Cola Co., 2010 U.S. Dist. LEXIS 65107, *1.

[17] Thomas Mason v. Coca-Cola Co., 2010 U.S. Dist. LEXIS 65107, *6 (citing 21 C.F.R. §101.54(e)).

[18] Id. at *10.