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.
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