Cross-posted at WLF’s Forbes.com contributor page
Gum, crackers, granola, fruit punch, cheese, nuts and nut mixes, lemonade, stuffing mix, gelatin, easy bake mac-and-cheese.
A good day’s shopping for most, but for some, such as California resident Susan Ivie, this basket full of goods represents a lawsuit in the making. Ms. Ivie purchased these products, produced by Kraft Foods, Cadbury, and Back to Nature, over a four-year period. Upon discovering that those companies had, in her opinion, duped her into making those purchases through false or misleading statements, Ms. Ivie contacted some lawyers, and volunteered to be the lead plaintiff in a class action lawsuit.
Well, we’re not sure if Ivie v. Kraft Foods Global et. al actually came about that way, but a recent decision in the suit provides us another opportunity to opine about the proliferation of food labeling lawsuits and the preferred venue for these claims: The Food Court (aka the U.S. District Court for the Northern District of California). To learn more about this litigation trend and why the Northern District is so popular, read a recent story from The Recorder, coincidentally called “Welcome to Food Court“, or read our numerous past posts which use that moniker.
State-level enforcement of federal labeling rules. Ivie pleads her case under, among other laws, California’s “Sherman Laws.” Those laws explicitly adopt all federal food labeling laws and regulations. This tactic allows plaintiffs, and federal judges, to do what federal law explicitly reserves to the FDA — interpret and enforce food labeling rules. Defendants, such as Kraft, Cadbury, and Back to Nature, have tried to get such claims dismissed by arguing the “primary jurisdiction doctrine” and federal preemption. In Ivie, Judge Ronald Whyte went through Ms. Ivie’s shopping cart, item by item, and examined the defendants’ arguments.
Items not in Ivie’s cart. But first, Judge Whyte ruled on claims based on items that were not even in Ms. Ivie’s shopping cart. She had pleaded some claims based on products she did not purchase that had labels similar to things she actually did buy. Judge Whyte agreed with the defendants that she did not have standing to sue for things she did not buy. He dismissed those claims, with leave to amend the complaint (perhaps so she could go out and actually buy those products).
Primary jurisdiction doctrine. Defendants asked Judge Whyte to dismiss all of Ivie’s claims because judging them was within “the special competence of an administrative agency,” namely FDA. The judge ruled that all but one product could remain in Ivie’s lawsuit shopping cart under this doctrine. Believe it or not, FDA is currently engaged in a formal rulemaking to redefine what constitutes one serving of a breath mint. Because of that, the Dentyne mints were tossed out of Ivie’s lawsuit cart.
Preemption. Judge Whyte then proceeded to go through the rest of the products and their allegedly false or misleading statements to determine whether federal laws preempted Ms. Ivie’s state claims. Because he had to adjudge whether the statements complied with labeling rules (and thus with California’s Sherman Laws), Judge Whyte took on the role of FDA bureaucrat.
He determined that the following products could survive the motion to dismiss and stay in Ms. Ivie’s lawsuit cart:
- Country Time Pink Lemonade Drink Mix (“no artificial sweeteners or flavors”)
- Kraft Deli Deluxe cheese (“reduced fat”)
- Trident Spearmint Sugar Free Gum (“sugar-free”)
- Easy Mac, Jell-O & Stove Top Cornbread Stuffing Mix (Slack fill packaging – i.e. too much empty room in package)
- Back to Nature granola and crackers (“contains evaporated cane juice”)
- Kraft Mexican Style Four Cheese (“100% natural”)
Judge Whyte did find several claims to be preempted, including those aimed at Planter’s Nut Mix’s “good source” statement and the “with added . . . vitamin D” claim on Kraft Mexican Style Four Cheese. He also found that because of the way Ivie’s complaint pleaded its claim regarding “natural lemon flavor” for Crystal Light packets, that claim was preempted. The judge did, however offer Ms. Ivie a road map on how to overcome preemption when she amended her complaint.
Unless the defendants appeal their losses to the Ninth Circuit, yet another Food Court-based class action suit moves forward toward expensive and distracting discovery. Will the defendants continue to fight these claims, or will they settle, as General Mills recently did in a case involving Yoplait yogurt?