Cross-posted at WLF’s contributor page at Forbes.com
Perusing yet another class action complaint filed in the Northern District of California, Gitson v. Clover-Stornetta Farms, we were positively amused to find that on page 19, the plaintiffs’ lawyers cite a letter from the Food and Drug Administration (FDA) to WLF for the proposition that under federal law, a company’s website is definitively considered “labeling.” FDA’s letter was in response to WLF’s April 2001 petition urging the agency to establish a formal policy on the nature of information on websites like that of Clover-Stornetta Farms.
While it’s flattering that WLF’s public interest work has such enduring relevance and utility, we can’t let the plaintiffs’ invocation of FDA’s letter pass without refutation.
Clover-Stornetta Farms’s alleged transgression was to misleadingly refer to the sweetener used in some of its yogurt products as “evaporated cane juice.” Misleading or false labeling under federal law, incorporated into the California laws under which Gitson is suing, renders the product “misbranded.” And according to the complaint, because the yogurt label referred to the company’s website (which did little more than helpfully reprint the ingredient label), the website constituted labeling which equally misbranded the product.
First, a letter responding to a petition for rulemaking does not constitute law or establish any binding legal principle, so for that reason alone, presiding Judge Laporte should quickly give the back of her hand to this argument. Second, FDA stated in the letter that under certain circumstances website information could be labeling. Neither of the two examples which FDA provided in the letter to WLF that would in their view constitute labeling is evident on Clover-Stornetta Farms’s website. Third, nothing in FDA’s letter to WLF reflects that the simple presence of a web address on a label “incorporates” any alleged website misrepresentations onto that physical label.
Taking this one step further into the realm of actual law, FDA in its letter to WLF relies upon a 1948 Supreme Court decision, Kordel v. United States, for the concept that information beyond the physical borders of a product package can be “labeling” under federal law. Kordel dictated that the external information and the physical packaging had to be “interdependent,” and must be “an essential supplement to the label attached to the package.” The information on Clover-Stornetta’s website was merely a recitation of what was on the yogurt itself, including the Nutrition Facts.
Finally, and most significantly — and still in the realm of actual law — another judge in the Northern District of California, Judge Conti, ruled on this very issue in Wilson v. Frito-Lay NA three days before the Gitson case was filed. No doubt Gitson’s lawyer was aware of the ruling, since he also represents the plaintiff in Wilson. Mr. Gore of Pratt & Associates argued in Wilson, without, as the court stated, citing “[any] authority for this point,” that FDA considers websites as part of the product’s labeling. Frito-Lay, like Clover-Stornetta, prints the company’s web address on their products. The court ruled that under the rationale of Kordel, neither the printing of the website nor the information on the site itself sufficiently “accompany” the information on the product so as to constitute “labeling.” Wilson’s claims based on Frito-Lay’s website information were thus dismissed.
We expect Judge Laporte in Gitson to follow the rationale offered by Judge Conti in Wilson and dismiss the website = labeling claim. No doubt plaintiffs like Gitson and their lawyers will try, try again and keep tossing these claims into food labeling class action complaints. Likely they will keep citing FDA’s letter to WLF as authority. They don’t have much else to cite reflecting FDA’s judgment on the matter; as we’ve noted previously, FDA continues to put off its long-promised guidance on social media and FDA-regulated products.