Lawsuits Challenging Food Labels on the Rise, but Are They Good for Consumers?

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And that’s just from the past few months. Would-be class-action lawsuits that challenge food labeling claims have been on the rise in recent years, driven in part by increased consumer demand for healthier food and more honest labeling, legal experts say. Of course, more opportunities for litigation also means more money for lawyers, prompting skepticism from some about whether these suits are really for the common good.

Later this month, a bevy of food labeling lawsuits — including more than a dozen filed against Kraft Heinz over the marketing of its Parmesan cheese — will be considered by a federal judicial panel in Chicago, which will decide whether to combine similar cases and where to locate them for pretrial hearings.

Whether those suits are certified for class-action treatment, and eventually prompt companies to cough up a settlement, remains to be seen. But they’re in the legal pipeline, for better or worse.

“I believe strongly in the rights of consumers and appropriate food labeling. What I’m skeptical of is that this is the appropriate mechanism to determine these issues,” said Adam Hoeflich, a professor of practice specializing in complex litigation at Northwestern University‘s Pritzker School of Law.

Hoeflich has handled many class-action lawsuits himself and believes them to be “appropriate and beneficial in certain circumstances,” notably in civil rights cases. But he remains leery of those involving food labeling issues, which he believes should be left to the Food and Drug Administration and Federal Trade Commission.

The lawsuits to be considered by the Judicial Panel on Multidistrict Litigation on May 26 include:

•Suits filed against Trader Joe’s alleging the grocery chain is underfilling its 5-ounce cans of tuna and therefore misleading customers.

•Suits filed against Quaker Oats alleging consumers have been misled because Maple & Brown Sugar oatmeal does not contain maple syrup despite the wording and images of maple syrup on the packaging.

•Suits against Kraft Heinz alleging misrepresentation in the marketing of its Parmesan cheese, which is labeled “100% Grated Parmesan Cheese,” despite containing filler material derived from wood chips.

“What’s happening here is more and more people are concerned about what they’re putting in their bodies, concerned about processed foods and the things added to them,” said Michael Moss, author of “Salt Sugar Fat: How the Food Giants Hooked Us.”

The lawsuits are part of a healthy process, a sort of national conversation, that’s forcing food companies to examine their practices, Moss said. That it’s happening without federal regulators makes it even better, he said.

“I love it that consumer agitation can cause companies to respond without government intervention,” said Moss, formerly an investigative reporter with The New York Times.

On the other hand, many food labeling lawsuits seeking class-action treatment contribute to negative perceptions of lawyers padding their pockets, said Bill Marler, a Seattle-based attorney specializing in food safety cases.

“You’ve got to do the right thing for your clients, but you cannot overreach. You don’t want to have your case to be the next Cap’n Crunch Berries,” Marler said.

Marler referred to the 2009 lawsuit in which a California woman sued PepsiCo, parent company of Quaker Oats, alleging she was misled because Cap’n Crunch Berries cereal does not contain any real fruit. A California federal judge tossed the suit.

“This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a ‘crunchberry.’ … So far as this Court has been made aware, there is no such fruit growing in the wild or occurring naturally in any part of the world,” U.S. District Judge Morrison England wrote in his opinion.

Not all plaintiffs reach for low-hanging fruit. The Center for Science in the Public Interest, a Washington, D.C.-based nonprofit that operates as a sort of watchdog on health and nutrition issues, has successfully challenged food companies on numerous fronts, prompting labeling change and/or settlements from companies such as Airborne, Kraft, General Mills, Dr. Pepper Snapple Group, PepsiCo and Kellogg.

It’s currently involved in a dozen other cases, including one against Kellogg’s Kashi cereal “for false and misleading labeling of its ‘all natural’ products.”

Clint Krislov, a Chicago-based class-action attorney, hasn’t litigated any food labeling cases in years. But back in 1994, Krislov and his colleagues argued a class-action suit against General Mills over Cheerios tainted with unauthorized pesticides that resulted in a settlement of $10 million in coupons for consumers and a nice payday for the attorneys, too.

From Krislov’s perspective, that’s fair game.

“People have a right to know what they’re buying. And until the FDA regulates these claims, as to whether they’re objective or mere puffery, we’re going to have to continue to challenge them,” Krislov said.

Source: www.chicagotribune.com www.chicagotribune.com

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