Shagha Tousi, a partner in the Litigation Department and a member of the Product Liability and Toxic Tort Litigation practice group, published “Federal Preemption and ‘All Natural’ Food and Beverage Cases” in the Winter 2016 issue of the American Bar Association (ABA) Section of Litigation’s Products Liability Litigation Newsletter. The article discusses how in recent years the courts have seen a significant rise in labeling-related claims with respect to food and beverage products. Much like in drug and device cases, defendants have found invocation of the doctrine of federal preemption to be generally effective in this wave of litigation. The Nutrition Labeling and Education Act (NLEA), 21 U.S.C. §§ 341 et seq., contains a provision that expressly preempts state laws addressing certain covered subjects, including food labeling requirements.

However, the preemption under the NLEA has not been applied by the courts to preempt every type of food and beverage labeling claim. Multiple courts have recognized that, when it comes to the regulation of food and beverage labeling, an issue that traditionally has fallen within the province of the states, a presumption against preemption exists. Shagha points out that these cases indicate that until the FDA acts more definitively on “all natural” labeling claims, at least some federal courts will be reluctant to find claims attacking food and beverage “all natural” labels as preempted by the FDA’s regulatory authority. She notes that absent formal guidance from the FDA on the topic of “all natural” claims, the uncertainty in the courts over the application of the doctrine of federal preemption in this area is likely to continue, if not increase.

To read the article, click here.