Muehlberger and Lingwall Discuss False Labeling Claims Based on Alleged Product Testing

In a recent article for Law360, Shook, Hardy & Bacon Class Actions and Complex Litigation Co-Chair Jim Muehlberger and Food and Beverage Litigation Associate Jeff Lingwall discuss the new wave of putative class action litigation against food and nutraceutical companies brought by plaintiffs bearing product test results that allegedly indicate deviations from labeled amounts.

They explain U.S. Food and Drug Administration (FDA) standards for evaluating nutrition labeling and attendant provisions of the Federal Food, Drug, and Cosmetic Act/Nutrition Labeling and Education Act, advocating anticipatory measures by companies, given the advent of product testing websites, crowdfunded research and the increased scrutiny of the dietary supplement industry. Such measures, they say, include ensuring that (i) production processes (and those of any contract manufacturers) produce FDA-compliant test results and (ii) performing regular product testing to assure compliance with nutrition labeling per FDA-testing procedures. 

If plaintiff attempts to impose liability because her fortified product tested with slightly higher nutrient content than as labeled, or if her naturally occurring product tested with slightly lower nutrient content than as labeled, she is again imposing standards not identical to those promulgated by the FDA, and so her claims should be preempted by federal law.