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«LITIGATION TO ADDRESS MISLEADING FOOD LABEL CLAIMS AND THE ROLE OF THE STATE ATTORNEYS GENERAL Jennifer L. Pomeranz* INTRODUCTION The increased ...»

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LITIGATION TO ADDRESS MISLEADING FOOD LABEL

CLAIMS AND THE ROLE OF THE STATE ATTORNEYS

GENERAL

Jennifer L. Pomeranz*

INTRODUCTION

The increased global prevalence of diet-related diseases, such as

diabetes, heart disease, and cancer, elevates the importance of truthful

and accurate nutrition information in the marketplace. 1 Consumers report an increased interest in consuming healthy food but concurrently evidence an inability to determine a food’s healthfulness based on food labels.2 Individuals also comprehend food labels to varying degrees,3 so it is critical that the information disclosed on packaging is clear and not misleading.

Federal regulations require standardized ingredient information and nutritional disclosures on packaging.4 Food manufacturers utilize * Jennifer L. Pomeranz, JD, MPH, Assistant Professor, Department of Public Health, Center for Obesity Research and Education, Temple University, jennifer.pomeranz@temple.edu. Funding for this paper was provided by the Robert Wood Johnson Foundation through a grant to the Yale Rudd Center for Food Policy & Obesity, Yale University. Thank you to Regent Law Review for their work on this Article.

1 William Kasapila & Sharifudin Shaarani, Harmonisation of Food Labelling Regulations in Southeast Asia: Benefits, Challenges and Implications, 20 ASIA PAC. J.

CLINICAL NUTRITION 1, 1 (2011), http://apjcn.nhri.org.tw/server/APJCN/20/1/1.pdf; see Josephine M. Wills et al., Exploring Global Consumer Attitudes Toward Nutrition Information on Food Labels, 67 NUTRITION REVIEWS (SUPP.) S102, S105, (2009), http://www.nutrociencia.com.br/upload_files/artigos_download/food%20labels.pdf.

2 See NIELSEN, BATTLE OF THE BULGE & NUTRITION LABELS: HEALTHY EATING

TRENDS AROUND THE WORLD 1, 3–4 (2012), available at http://dk.nielsen.com/site/ documents/NielsenGlobalHealthyEatingReportJan2012FINAL.PDF; see also Miri Sharf et al., Figuring Out Food Labels. Young Adults’ Understanding of Nutrition Information Presented on Food Labels Is Inadequate, 58 APPETITE 531, 532 (2012), available at http://www.sciencedirect.com/science/article/pii/S0195666311006805 (discussing a study revealing how many people did not understand food labels as well as they thought they did); Wills et al., supra note 1, at S102–03; Press Release, Am. Dietetic Assoc., How Important Is It to You? Diet, Nutrition and Physical Activity Differ for Men and Women, Says American Dietetic Association Survey (Sept. 27, 2011), available at http://www.eatright.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=6442465294&lib ID=6442465277 (explaining statistics that show an increased interest in diet and nutrition).

3 See Wills et al., supra note 1, at S102–03, S105.

4 Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 343-1(a)(3)–(4) (2012).

Internationally, the Codex Alimentarius (“Codex”) was created in 1963 to develop international food standards. F. Edward Scarbrough, Codex—What’s All the Fuss?, 65 FOOD & DRUG L.J. 631, 631 (2010). Codex is recognized “as the primary international 422 REGENT UNIVERSITY LAW REVIEW [Vol. 26:421 the remaining label space to draw consumers to their products and to stand out from their competitors. Given the increased interest in health, manufacturers have steadily expanded the number and type of nutritionrelated claims on food packaging. 5 Research indicates that many such statements may be misleading,6 and public health advocates have called for increased regulation to address unruly claims. 7 The Food and Drug Administration (“FDA”) has authority over food labels pursuant to the Food, Drug, and Cosmetic Act.8 Conversely, the Federal Trade Commission (“FTC”) is responsible for the veracity of food advertising.9 Congress passed the Nutrition Labeling and Education Act (“NLEA”) in 1990 authorizing the FDA to require the disclosure of authority on food issues,” and Codex documents serve as “templates for national regulations.” Peter J. Aggett et al., Nutrition Issues in Codex: Health Claims, Nutrient Reference Values and WTO Agreements: A Conference Report, 51 EUR. J. NUTRITION (SUPP.) S1, S1–2 (2012), available at http://link.springer.com/article/10.1007%2Fs00394-012-0306page-1. Despite this goal, country-specific regulations are not uniform globally. See Kasapila & Shaarani, supra note 1, at 2. For example, in a study of ten Southeast Asian countries, the countries utilized a mix of Codex nutrition labeling guidelines and U.S.

standards, with the addition of country-specific values for nutrient references. See id. at 1– 2.

5 STEVE W. MARTINEZ, ERS, ECONOMIC INFORMATION BULLETIN 108, INTRODUCTION OF NEW FOOD PRODUCTS WITH VOLUNTARY HEALTH- AND NUTRITIONRELATED CLAIMS, 1989–2010, at iii (2013), available at http://www.ers.usda.gov/ publications/eib-economic-information-bulletin/eib108.aspx#.UmusR1PW41I.

6 See Jennifer L. Harris et al., Nutrition-Related Claims on Children’s Cereals:

What Do They Mean to Parents and Do They Influence Willingness to Buy?, 14 PUB.

HEALTH NUTRITION 2207, 2207, 2211 (2011) [hereinafter Harris et al., Nutrition-related Claims on Children’s Cereals], http://journals.cambridge.org/download.php?file=%2 FPHN%2FPHN14_12%2FS1368980011001741a.pdf&code=620054c23c3918398a9e7b504 bdd5319; see also Adam Drewnowski et al., Testing Consumer Perception of Nutrient Content Claims Using Conjoint Analysis, 13 PUB. HEALTH NUTRITION 688, 688 (2010), http://journals.cambridge.org/download.php?file=%2FPHN%2FPHN13_05%2FS136898 0009993119a.pdf&code=46253c1097d3cd35a467b20ce538f628 (discussing different types of labels as well as FDA action to prevent false or misleading labels).





7 See Marion Nestle & David S. Ludwig, Front-of-Package Food Labels: Public Health or Propaganda?, 303 J. AM. MED. ASS’N 771, 772 (2010), http://jama.ama-assn.org/ cgi/content/full/303/8/771.

8 Matthew R. Kain, Comment, Throw Another Cloned Steak on the Barbie:

Examining the FDA’s Lack of Authority to Impose Mandatory Labeling Requirements for Cloned Beef, 8 N.C. J. L. & TECH. 303, 347 (2007); see 21 U.S.C. § 343; see also Memorandum of Understanding Between The Federal Trade Commission and The Food and Drug Administration, MOU 225-71-8003 (1971), http://www.fda.gov/AboutFDA/ PartnershipsCollaborations/MemorandaofUnderstandingMOUs/DomesticMOUs/ucm11579

1.htm [hereinafter Memorandum of Understanding] (explaining the FDA’s responsibilities and jurisdiction over misbranded food).

9 Memorandum of Understanding, supra note 8.

2014] FOOD LABEL LITIGATION 423 nutrition information and to regulate certain nutrition-related claims.10 In 1993, the FDA issued regulations that were groundbreaking at the time but that are now outdated and do not reflect manufacturers’ current use of claims or scientific advances in nutrition information. 11 Some categorically unhealthy products bear several nutrition-related claims per package consistent with the law’s permissive allowances. 12 In addition, the FDA does not consistently enforce all violations of its own regulations.13 As a result of outdated regulations and lax enforcement, the initiation of private lawsuits has escalated. 14 These lawsuits range from advocacy efforts to reign in problematic claims and hold food companies accountable to private plaintiffs claiming damages due to a misbranded or misleading label.15 Also of note are litigious actions initiated by food manufacturers under the Lanham Act or the industry’s self-regulatory body, the National Advertising Division (“NAD”) of the Council of Better Business Bureaus,16 both of which are based on concerns over unfair competition and which have interesting parallels to consumer-based activity. However, such litigation is time consuming and costly and 10 Nutrition Labeling and Education Act of 1990, Pub. L. No. 101-535, 104 Stat.

2353 (codified at 21 U.S.C. § 343 (2012)).

11 See Food Labeling Modernization Act of 2013, H.R. 3147, 113th Cong. § 1 (2013);

Food Labeling, 21 C.F.R. § 101 (1994); Pauline M. Ippolito & Alan D. Mathios, New Food Labeling Regulations and the Flow of Nutrition Information to Consumers, 12 J. PUB. POL’Y & MARKETING 188, 188 (1993); see also, Elaine Watson, Food Labeling Bill Proposes Radical Changes to ‘Natural’ Claims, Wholegrain Labels, Added Sugars; but Chances of Success Are Slim, Say Lawyers, FOOD NAVIGATOR-USA.COM (Sept. 19, 2013), http://www.foodnavigator-usa.com/Regulation/Food-labeling-bill-proposes-radical-changesto-natural-claims-wholegrain-labels-added-sugars-but-chances-of-success-are-slim-saylawyers.

12 JENNIFER L. HARRIS ET AL., RUDD CTR. FOR FOOD POL’Y & OBESITY, CEREAL

FACTS: EVALUATING THE NUTRITION QUALITY AND MARKETING OF CHILDREN’S CEREALS 41,

54, 58 (2009) [hereinafter CEREAL FACTS], available at http://www.cerealfacts.org/media/ Cereal_FACTS_Report_2009.pdf.

13 See, e.g., Jennifer L. Pomeranz, A Comprehensive Strategy to Overhaul FDA Authority for Misleading Food Labels, 39 AM. J.L. & MED. 617, 629–30 (2013).

14 Elaine Watson, Improper Nutrient Content Claims Cited in New Wave of Class Action Suits, FOOD NAVIGATOR-USA.COM (Apr. 19, 2012), http://www.foodnavigatorusa.com/Regulation/Improper-nutrient-content-claims-cited-in-new-wave-of-class-actionsuits [hereinafter Watson, Improper Nutrient Content Claims]; see also Litigation Project, CTR. FOR SCI. PUB. INTEREST, http://www.cspinet.org/litigation/index.html (last visited Mar.

20, 2014) (explaining reasons for increased litigation by the Center for Science in the Public Interest).

15 See Red v. Kraft Foods, Inc., 754 F. Supp. 2d 1137, 1142–44 (C.D. Cal. 2010);

Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111, 1114, 1126 (N.D. Cal. 2010).

16 See infra Part II.A.

424 REGENT UNIVERSITY LAW REVIEW [Vol. 26:421 sometimes produces different results for the same issue. 17 Although there have been individual successful cases, current litigation efforts have not precluded the introduction of new questionable nutritionrelated claims on labels or effectively addressed the problematic foodlabeling environment as a whole.18 A more effective alternative than private litigation would be for the state attorneys general (“attorneys general”) to individually or collectively pursue litigation and other actions to address questionable food labels. Attorneys general have a unique set of authorities that are unavailable to other parties or government entities. 19 Their charge includes protecting consumers and supporting conditions for fair competition and transparency in the commercial marketplace.20 Attorneys general can address questionable labeling practices through litigation and pre-litigation means and join together in concerted effort to effectuate industry-wide changes. A successful consumer protection action by the attorneys general can have wide-range implications and provide a stronger deterrent than private litigation. However, to date, attorneys general have not addressed misleading food-labeling issues to the extent their authority permits or to the level of other similar consumer protection issues.

Part I of this Article briefly describes the FDA’s regulatory authority over food label claims and how the law hinders certain private attempts to enforce the regulations. This Article goes on to discuss the successes and limitations of the two primary types of private-party litigation in Part II. The first section of Part II briefly addresses manufacturer-initiated actions. The second portion of Part II addresses lawsuits initiated by consumers and consumer advocates pursuant to state consumer protection statutes. In Part III, this Article explains the

17 See Elaine Watson, Evaporated Cane Juice Lawsuits Update: Blue Diamond,

Trader Joe’s, Wallaby Yogurt Co Under Fire, Chobani Off the Hook?, FOOD NAVIGATORUSA.COM (Oct. 9, 2013), http://www.foodnavigator-usa.com/Regulation/Evaporated-canejuice-lawsuits-update-Blue-Diamond-Trader-Joe-s-Wallaby-Yogurt-Co-under-fire-Chobanioff-the-hook.

18 See infra Part II.

19 See infra Part III.A.

20 See, e.g., ATT’Y GEN. ERIC T. SCHNEIDERMAN, http://www.ag.ny.gov/ (last visited Mar. 20, 2014) (“Law enforcement actions are taken by the [New York] Attorney General to protect the public good and to ensure a fair market place.”). Attorneys general separately work on antitrust issues to support a fair marketplace that also protects consumers. See generally A Federal-State Partnership on Competition Policy: State Attorneys General as Advocates, FTC (Oct. 1, 2003), http://www.ftc.gov/public-statements/2003/10/federal-statepartnership-competition-policy-state-attorneys-general (“The past 20 years has seen the emergence of a strong consensus in antitrust that enhancing consumer welfare is and should be its single unifying goal.”). Antitrust litigation is beyond the scope of this paper.

2014] FOOD LABEL LITIGATION 425 litigation and pre-litigation authority of attorneys general to protect consumers in the food-labeling context and discusses how attorneys general can utilize this power to broadly address questionable foodlabeling practices. Although the consumer protection authority of attorneys general is the focus of this section, a brief discussion of litigation pursuant to their parens patriae authority in the context of food and food labeling is included.

I. THE FOOD, DRUG, AND COSMETIC ACT



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