Seventh Circuit Affirms Federal Preemption in Food-Labeling Case
Natasha A. Saggar, Litigation News Associate Editor – January 12, 2012

Plaintiffs may have a hard time chewing on a recent Seventh Circuit Court ruling in a case brought under Illinois state law for deceptive food labeling. In dismissing the putative class action, the appellate court found that the federal Nutrition Labeling and Education Act of 1990 preempts any state law that attempts to impose labeling requirements that are not identical to those contained in the Food, Drug and Cosmetic Act.

Natural vs. Non-Natural Fibers in Packaged Food
In Turek v. General Mills, Inc. [PDF], plaintiff Carolyn Turek sued General Mills and Kellogg. She alleged that defendants violated the Illinois Consumer Fraud and Deceptive Business Practices Act and the Illinois Uniform Deceptive Trade Practices Act by failing to disclose that their popular Fiber One “chewy bars” and other fiber-fortified products contain processed, non-natural fibers.

Defendants’ packaging states, in the case of Kellogg’s Fiber Plus chewy bar [PDF] for example, that they contain “35% of your daily fiber.” Additionally, General Mills operates the website www.fiberone.com that says fiber foods like beans, fruits, and whole-grain products contain fiber.

Yet defendants’ products, however, Turek asserted contain chicory root extract, composed primarily of inulin, a non-natural fiber. She alleged that inulin has not been shown to possess all of the health benefits of natural fibers found in whole grains, fruits and vegetables, and can cause stomach problems and be harmful to women who are pregnant or breast-feeding. Turek did not claim to have personally suffered any negative health effects. Among the relief sought, she requested defendants engage in a corrective advertising campaign.

State Law Claims Preempted by Federal Food Labeling Regulations
The provisions of the Nutrition Labeling and Education Act (NLEA), which amended the Food, Drug and Cosmetic Act (the Act), govern all food labels. This includes statements made on the front of packaged products. NLEA prohibits state or local authorities from establishing any requirements for nutritional labeling that are not identical to the requirements provided in the Act.

Under NLEA, a state may petition the FDA to exempt from the ‘identical’ requirement any state regulation designed to address a need not covered by the requirements imposed by federal law— an exemption Illinois did not seek in this case. Where no exemption is in place, a remedy under state law that would result in the imposition of materially different labeling requirements than those required under federal law is expressly prohibited.

Federal regulations relating to dietary fiber do not require distinctions between natural and non-natural. The CFR identifies inulin as a recognized nonorganic product that a person may list as an ingredient in a product labeled “organic.” The court found that defendants’ labeling complied with federal law.

The disclosures plaintiff sought to add to defendants’ labeling exceeded the scope of the federal regulations, and thus were not identical to the federal requirements. Accordingly, plaintiff’s claims were barred and the case was dismissed.

Is Food Labeling Still a Ripe Area for Litigation?
This decision certainly “narrows the portal of entry for plaintiffs in labeling claims like this,” says D. Alan Rudlin, Richmond, VA, cochair of the ABA Section of Litigation’s Products Liability Committee. Nonetheless, food labeling may still be a fruitful area of litigation for plaintiffs.

Food-labeling litigation has two parts, according to Andrew J. Maloney, New York, cochair of the Section of Litigation’s Mass Torts Litigation Committee. “One is the accuracy of the representation on the label, which is a much more daunting and difficult challenge,” he says. “The other part of it is the safety issue.” The Seventh Circuit did not address the plaintiff’s concerns about the negative health effects of the processed fibers; as such, common law failure-to-warn claims may still be viable, Rudlin adds.

Plaintiffs looking to litigate in this arena must understand that such claims are “very fact-specific in terms of the underlying allegations and also very fact-specific as a matter of law” in terms of the applicable regulations, Maloney says. Plaintiffs should also always anticipate a preemption challenge.

Beyond litigation, a state can always choose to seek an exemption from the FDA to provide additional protections for its consumer citizens. According to an exhibit submitted by plaintiffs, the science is still emerging concerning the health benefits of processed fibers as compared to natural fibers. The FDA regulations have not yet changed, but the FDA is taking a close look at how food products labeling relates to nutritional claims, especially on the front of the package. Additionally, the Center for Science in the Public Interest urged that the FDA crack down on misleading food labeling generally, and amend the regulatory definition of fiber to include only fibers from whole grains, beans, and other foods.

Keywords: Seventh Circuit, federal preemption, food labeling

 
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