A wave of new litigation has struck the food industry, with one group of plaintiffs’ attorneys behind the surge. In more than 25 putative class action complaints, this group of attorneys seeks to supplant the role of the Food and Drug Administration (FDA) in enforcing the Food Drug and Cosmetic Act (FDCA), its implementing regulations and FDA policy on front-of-package labeling. The complaints hinge on alleged technical violations of these statutes, regulations and policies, such as failing to include a required disclosure on the front of a package or stating that a product contains antioxidants without identifying the antioxidant. The complaints allege that the supposed violation of these statutes, regulations or policies renders the products “misbranded,” and the plaintiffs seek class-wide recovery of the full purchase price of the products.
Interestingly, the FDCA anticipates such private actions based on violations of the FDCA and its implementing regulations, and expressly prohibits them. However, to date, this has not stopped these cases from advancing, due to state food laws that adopt the FDCA and its implementing regulations. While the complaints attempt to latch onto these underlying state laws to save their claims from early dismissal, it is apparent from nearly all of the complaints that the claims are based squarely on federal law, as evidenced by heavy citation to FDA Warning Letters, FDA front-of-package labeling guidance and other federal sources.