Food and Supplement Class Action Suits That Rely on Alleged Regulatory Violations

FDLI Update Magazine Summer 2021

Theodora McCormick, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Princeton and Newark offices, authored an article in FDLI Update Magazine, titled “Food and Supplement Class Action Suits That Rely on Alleged Regulatory Violations.”

Following is an excerpt:

Historically, the majority of consumer class actions against food and dietary supplement companies were brought under state consumer protection statutes and premised on claims that consumers were misled by a product’s advertising or labeling. In other words, class actions against food and supplement companies have traditionally been based on allegations of deceptive advertising, not regulatory compliance.

That, however, is starting to change. As the food and supplement industries have evolved, and companies have streamlined their advertising and stopped using obviously problematic claims like “natural,” “all natural,” or “no artificial ingredients,” challenges have emerged that are premised instead on alleged violations of complex regulatory schemes, as opposed to deceptive advertising or marketing, per se.

While it is well settled that consumers cannot privately enforce the Federal Food, Drug, and Cosmetic Act (FDCA), litigants have employed a variety of approaches premised on state consumer protection statutes to indirectly bring the FDCA into play.

Most of these cases have been filed in California, with the U.S. District Court for the Northern District of California being the most frequent forum. California’s Unfair Competition Law gives consumers a cause of action for almost any regulatory violation, even if the regulation does not expressly permit consumer enforcement.

This article highlights risk mitigation approaches companies may employ to address these types of claims.