Food Companies Face Heightened Scrutiny Over Labels

Food labels make many claims.

But increasingly, the food companies behind the labels that make those claims are facing court challenges over them.

Food labeling lawsuits are nothing new; they've existed for years. But according to the New York Times, these claims are now "surging" because "advocacy groups" have been frustrated in their efforts to convince federal regulators to increase their oversight of the nation's food supply.

The demand for healthy food is increasing, and these plaintiffs are contending that some food producers are attempting to exploit that demand with misleading labels.

Focusing on Specifics

The website Food Manufacturing notes that the nature of the lawsuits is also changing. While earlier lawsuits challenged general claims that products were "all-natural," more recent lawsuits are more specific. The newer ones tend to focus on whether an ingredient or flavor is artificial, the origins of products, the absence or presence of ingredients on a label, or claims about "ancillary representations" like whether a product really is sustainably farmed or humanely raised.

One of the lawsuits that attracted attention earlier this year was a class action by two California women who alleged that the tuna fish subs sold by Subway restaurants don't contain actual tuna fish. That case was recently dismissed by a federal judge, but only on procedural grounds. The question about the authenticity of Subway's tuna remains unanswered.

Reviewing Recent Legal Action

Since the Subway lawsuit, filed in January, there have been many more taking aim at specific ingredients and other label claims.

Here's a review:

• A class-action lawsuit filed in August alleges that Hormel Foods deceptively labeled its Black Label Center Cut Bacon as containing 25% less fat than its regular bacon. The plaintiffs contend that the claimed fat reduction is the result of a smaller serving size and not an actual reduction.
• On Oct. 12, plaintiffs filed a motion asking a New York judge to approve a $20 million settlement with Godiva Chocolatier, Inc. The class-action lawsuit claimed that Godiva's "Belgium 1926" U.S. packaging misled consumers into believing that the chocolate was made in Belgium — and presumably of higher quality — when it is not.
• A lawsuit filed in May alleges that Frito-Lay North America Inc. is misleading consumers with its label promising a "hint of lime" in Tostito's tortilla chips. The plaintiffs say the wording suggests a "slight but appreciable amount" of lime flavor when in fact lime is only a "de minimis or trace amount" of the "natural flavors" listed on the ingredients label.
• An Illinois woman is suing Kellogg's, arguing that the company's Strawberry Pop-Tarts are masquerading as health food. The plaintiff, Anita Harris, contends that Kellogg's label promises "a greater relative and absolute amount of strawberries" than the product contains. She also said that if she'd known that earlier, she never would have purchased the Pop-Tarts.
• The Whole Foods supermarket chain is facing a lawsuit for an allegedly misleading label on its "organic chocolate bars." Plaintiff Kayla Cerretti says the product "contains less chocolate than consumers expect." The complaint says that consumers expect chocolate to come from cacao beans, but that the Whole Foods chocolate bars contain more palm oil than cacao products.

Court Dismissals

In June, a judge ruled that a lawsuit against Sargento Foods Inc. over its "No Antibiotics" label claim on cheese products could proceed.

But other lawsuits about labeling claims have recently been dismissed.

In July, the 9th U.S. Circuit Court of Appeals dismissed a lawsuit alleging that Trader Joe's mislabeled its Manuka honey as being "100% New Zealand Manuka Honey." The plaintiff contended that the honey came from floral sources other than Manuka flower nectar, but the court ruled that the distinction was unlikely to mislead a "reasonable consumer."

The U.S. District Court for the Eastern District of New York reached a similar conclusion in July, dismissing a lawsuit alleging that Mars vanilla ice-cream bars are not flavored only with vanilla beans and instead use ethyl vanillin to imitate vanilla. The court said the plaintiffs failed in showing that a "reasonable consumer" would think that vanilla ice cream is made exclusively from the vanilla plant.

What Might the Future Hold?

Some of these lawsuits do sound a bit silly. But the people and organizations seeking greater accountability from Big Food believe they serve a purpose in drawing attention to companies that are allegedly "greenwashing" their brands through deceptive labeling. Maybe the lawsuits won't result in successful verdicts or settlements, but they do draw attention.

Meanwhile, the growing fight over food labeling has drawn the attention of Congress. A bill introduced last month in the House would overhaul food labeling through a system of symbols to reflect how healthy the products are. Lobbyists from the food industry are sure to fight it, however, and its chances for passage in the divided Congress are less than certain.

Related Resources:

• Ben & Jerry's Ice Cream Not Sourced From 'Happy Cows,' Suit Claims (FindLaw's Legally Weird)
• Something Smells Fishy as Subway Calls for Tuna Lawsuit Dismissal (FindLaw's Courtside)
• Why Is My Non-Dairy Milk Called Almond or Oat 'Beverage' Now? (FindLaw's Legally Weird)