Colorado-based attorney Justin Prochnow from law firm Greenberg Traurig was speaking to FoodNavigator-USA after Bumble Bee Foods became the latest in a string of manufacturers to be targeted in a lawsuit citing “false and deceptive nutrient content claims”.
The very real threat of civil litigation
The suit, which comes hot on the heels of class actions vs CytoSport (Muscle Milk) and PepsiCo (Frito Lay) citing improper nutrient content claims, alleges that Bumble Bee made unlawful omega-3 nutrient content claims.
The actions should serve as a warning to firms to get labels checked by an expert before products go to market, said Prochnow.
“With the very real threat of civil litigation over labeling violations now hanging over companies, the ability to just fix it when the Food and Drug Administration (FDA) notifies a company of problems is no longer the worst thing that can happen.
“Now, an improper labeling claim could mean hundreds of thousands of dollars in legal fees and settlement amounts to resolve the situation that could have been resolved by having an experienced person spend just an hour or two to review the labels or labeling.”
‘Cases for alleged labeling violations continue to be filed almost daily in California’
He added: “Cases for alleged labeling violations continue to be filed almost daily in California. And nutrient content claims appear to be an area that plaintiffs’ lawyers, or at least the group filing such cases, have latched onto.”
“I believe that they feel nutrient content claims are relatively easy cases to bring, compared to other subjective claims like ‘natural’.
“For nutrient content claims, there are specific regulations that set forth the parameters and it is usually pretty easy to see whether a company is in compliance or not.”
How easy is it to prove damages in these cases?
Having said that, there is still no guarantee of success, he added: “I still think a big roadblock to plaintiffs’ lawyers down the road in these cases is going to be the ability to prove actual damages for these cases.
“Are people really buying products because they know that ‘great source of’ means there is 20% of the RDI or DV of a particular ingredient? Unlikely. So, were these consumers really deceived and damaged as a result of a potential labeling violation?
“I think if these cases ever make it to completion, plaintiffs may be hard pressed to prove any significant damage.”
But he added: “However, the cost of defending such litigation is such that most cases don't make it to the court phase, much less the damage phase.”
What’s the worst that could happen?
Some companies do not realize they are violating labeling legislation, he said, while others “believe they can just copy the labels of other companies with products already on the market. That works fine if you copy the A student. But if you copy the D student, you are just copying the wrong information.”
Others don’t consider the threat of civil litigation, he said. “I also think there is a small segment that has operated under the assumption that the worst thing that would happen from an improper labeling claim is that they would receive a warning letter and then they would fix it and move on.”
FDA warning letters: A 'road map' for enterprising plaintiffs' attorneys?
While several class actions refer to FDA warning letters sent to defendants - and opportunistic attorneys often trawl through such letters seeking ammunition – the letters are not conclusive proof of violations, he stressed.
“While warning letters probably do provide a ‘road map’ to plaintiffs' lawyers, many of them are incorrectly citing to them as proof of violations, when they are really nothing more than the FDA's opinion that violations have taken place.
“Warning letters are not final agency action or law.”