August 31, 2011 Articles

Food Labeling Remains Ripe for Consumer Fraud Class Actions

By Sarah L. Brew, Kristin R. Eads, and Steven B. Toeniskoetter

Food companies today face greater scrutiny of their product labeling and advertising—by regulatory agencies, consumer groups, and the plaintiffs' bar. The result has been a dramatic increase in putative class action lawsuits, a trend that will likely continue as the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) take a more active role in assessing food labeling and advertising. Just recently, for instance, the FTC and FDA, along with the Centers for Disease Control and Prevention (CDC) and the U.S. Department of Agriculture (USDA), released for public comment proposed voluntary principles to guide food industry marketing to children.

Regulatory initiatives such as these may be followed by class action suits filed under state consumer fraud statutes, which are attractive to plaintiffs because of relaxed proof requirements, especially with respect to individualized reliance,; the ability to obtain attorney fees, and the amenability to class certification. Food companies have available a variety of defenses to such claims, though the success of some of those defenses turns on the relevant food-related legislation or regulatory rulemaking.

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