A new area of growth in the legal profession appears to be suing food and drink companies for false advertising.
As an example, a recent Reuters article in The Gazette referenced a lawsuit against Kellogg’s involving its Strawberry Pop-Tarts. The claim in this case was that the product did not contain enough strawberries to warrant the use of the word “strawberry” in its name and that red food coloring, rather than something made from strawberries, was used on the packaging to make the product more attractive. According to the article, the lawsuit was dismissed by a Chicago federal district court judge who, in his decision, said that no reasonable consumer could believe from Kellogg’s packaging that the product would not contained only strawberries or more strawberries than other fruits.
The Reuters article also said that a leading multinational law firm, Perkins Coie, which has dealt with defending food and beverage companies against false advertising claims, reported that 325 class action lawsuits of this type had been filed in 2021, compared to 221 in 2020. (Another article I found indicated that only 53 such lawsuits had been filed ten years ago, in 2011.)
These false food and beverage advertising lawsuits involve allegations of misrepresentation of all kinds: flavors (real fruit), production methods (animal-friendly), ingredients (vanilla/fudge), healthy eating (all-natural/no preservatives) and a long list of other product attributes.
Most of these cases end up being thrown out early in the process. Several, however, have led to modest settlements, in part because settlements are cheaper than litigation. (Defendants never admit wrongdoing.) Although the settlement amounts were small, they were large enough to encourage other lawyers to join the parade.
What surprises me most about this explosion of false advertising litigation is that the Food and Drug Administration, through its Center for Food Safety and Applied Nutrition (and based on the law Federal Fair Packaging and Labeling), has developed a comprehensive and very detailed set of rules outlining what food and beverage companies can and cannot say about their products. These rules govern at least the following terms: “extra lean”, “high potency”, “enriched”, “fortified”, “antioxidant”, “good source of”, “low in”. For example, if a company wants to claim that their product is a “good source” of something, the product must contain at least a specified percentage of the recommended daily amount of the ingredient.
Food and beverage industry critics say the FDA’s rules, despite their detailed content, are inadequate and ambiguous, and that the FDA doesn’t have enough staff or budget to enforce its own rules. In this regard, the Biden administration has promised to strengthen regulation of the food and beverage industry.
Colorado has a broadly stated law, the Consumer Protection Act, which prohibits misleading advertising of any product or service. In 2018, a case against Champion Pet Foods involving its dog food products was brought under this law in federal district court in Colorado. In 2020, the case was dismissed on motion. The judge found that the statements the plaintiffs relied on were “inflated” and unverifiable facts. Puffery, the judge said, is not illegal and people should know not to rely on it when making buying decisions. (In case you were wondering, two of the dogs involved in this case were Iha and Beau. Neither had a chance to testify.)
Jim Flynn is with the Colorado Springs company of Flynn & Wright LLC. You can contact him at [email protected]