One ongoing dispute in the world of food labeling has been the U.S. Food & Drug Administration’s efforts to define the term “natural.” After years of refusing to wade into the debate, the FDA last year extended the comment period for proposed rulemaking over the term “natural” to April 26, 2017. Since the closure of the comment period in April, the FDA has yet to provide any formal rule or guidance on the term. As a result, a number of cases pending the agency’s seemingly imminent decision remain stayed.
In October, FDA Commissioner Scott Gottlieb seemed to indicate in an interview in The Wall Street Journal that he would like to see the FDA enforce “natural” claims on a case-by-case basis, suggesting that the FDA’s ultimate rule or guidance may be standards-based and limited in scope and pre-emptive effect.
The lack of guidance from the FDA did not stop plaintiffs from filing “natural”-related claims. In the second half of 2017, McGuireWoods tracked at least eight newly filed class-action suits related to the term “natural” used on labeling, and tracked another four cases that settled “natural” claims, costing defendants (and perhaps consumers) potentially more than $5 million combined. For each filed case, there may be many unfiled and individually resolved matters.
Slack-fill suits also remained popular last year, though they have yet to result in any serious judgments or settlements. In the second half of 2017, McGuireWoods tracked at least eight newly filed class-action slack-fill suits, but did not track any slack-fill settlements.
Holdings from three class actions before the 9th Circuit may result in an increase in class actions filed in California’s already-popular “food courts.” In Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), the 9th Circuit declined to apply an “administrative feasibility” standard as a prerequisite to class certification under Federal Rule of Civil Procedure 23. As a result, putative class members may not need to reliably demonstrate class membership.
Next, in Robins v. Spokeo, Inc., 867 F.3d 1108 (9th Cir. 2017), the 9th Circuit found a class representative plaintiff’s intangible harm sufficient to provide Article III standing for a class action over the defendant’s alleged violation of the Fair Credit Reporting Act.
Finally, under Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017), the 9th Circuit held that California consumers may seek injunctive relief regarding product labeling even if they testify that they are unlikely to again purchase the allegedly misbranded product. Taken together, Briseno, Robins and Davidson likely suggest that class-action claims in California federal courts may increase in 2018 as prospective plaintiffs find favorable case law in the 9th Circuit.
Finally, the scheduled announcement on the U.S. Department of Agriculture’s proposed rule regarding bioengineered food will likely affect litigation in the second half of 2018. Under the National Bioengineered Food Disclosure Standard, passed by Congress in 2016, the USDA is required to implement specific rules regarding a number of issues, including disclosure of genetically modified organisms in food, by July 2018. In August 2017, the comment period for the rule closed. In 2017, GMO litigation remained popular amongst plaintiffs and the USDA’s rules should provide some clarity. Any proposed rule should also pre-empt a recent spate of cases seeking to challenge GMO-related labeling based on animal products from animals allegedly being fed feed containing GMOs. See Reilly v. Chipotle Mexican Grill, Inc., No. 16-17461, 2017 U.S. App. LEXIS 19278 (11th Cir. Oct. 4, 2017); Podpeskar v. Dannon Co., No. 16-cv-8478 (KBF), 2017 U.S. Dist. LEXIS 198948 (S.D.N.Y. Dec. 3, 2017).