Recent years have seen a surge in private class actions alleging that food labels are misleading or misbranded. The viability of many of these cases, however, has been limited by two important provisions of the Food, Drug, and Cosmetic Act ("FDCA"). Section 310 provides that only the United States (or states acting under federal supervision) may enforce the FDCA. In addition, Section 403A lists many types of food regulations and prohibits state law from imposing requirements that are not identical to the federal requirements. A new congressional bill would eliminate both of these protections.

On January 28, 2015, Representative Rosa DeLauro (D. Conn.) and Senator Richard Durbin (D. Ill.) introduced the "Safe Food Act of 2015." The bill is largely aimed at creating a new "Food Safety Administration" that would absorb the food-safety functions of the current Food and Drug Administration and Department of Agriculture. The bill also seeks to modernize food regulation. But buried within the bill are provisions—neither of which is mentioned in the sponsors' press releases—that are designed to encourage lawsuits against food manufacturers.

Under current law, although private plaintiffs can assert traditional false advertising claims against food manufacturers, there is no private right of action to enforce the FDCA. Certain plaintiffs in California claim to have found a work-around. They argue that: (i) California's Sherman Law imports into state law all federal food regulation, (ii) California's Section 17200 provides a private right of action for the enforcement of all state laws, and, therefore (iii) California plaintiffs can sue under Section 17200 to enforce the Sherman Law, even if the substantive effect is the same as a prohibited effort to enforce the FDCA. While there is no shortage of such "misbranding" lawsuits, this seems to be an only-in-California phenomenon. Analogous theories do not appear to be viable under the laws of any other state.

Section 408 of the proposed Safe Food Act ("Citizen Civil Actions") would open up courts nationwide to private suits that are now banned by Section 310 of the FDCA. The bill would permit any person to "commence a civil action against a person that violates a [food] regulation." Presumably suits could be brought not just on misbranding theories, but also on any other subject currently enforced by federal regulators, such as good manufacturing practices. Private citizens could also sue to compel regulators "to perform an act or duty to ensure the safety of food that is not discretionary under the food safety law." Private plaintiffs will be entitled to damages in the amount "actually sustained," and they may be awarded attorney's fees.

The proposed Safe Food Act also takes aim at preemption. Section 207(f), titled "No Federal Preemption," states that "Nothing in this Act shall be construed to preempt the enforcement of State food safety laws and standards that are at least as stringent as those under this Act." Under current law, it is a defense in many food labeling cases (including cases proceeding under traditional false advertising theories) that plaintiffs would impose a labeling requirement that is different from, or expressly permitted by, federal law. It is the apparent intent of the pending bill to strip away this defense, allowing courts to impose liability for labels that are fully compliant with federal mandates.

The Safe Food Act is, of course, a long way from passage, and it won't ever become law without bipartisan support. Companies in the food sector, however, should be aware of efforts to increase their litigation burdens.