LEXINGTON, Miss. (Legal Newsline) - Plaintiffs attorneys and consumer advocacy groups agree there has been a significant uptick in the amount of food and beverage class action lawsuits filed in recent years, but they contend much of the blame lies with manufacturers themselves and poor government regulation.
Richard Barrett, a Mississippi plaintiffs attorney who has brought dozens of cases against food and beverage companies, said firms such as his own, Barrett Law Group PA in Lexington, Miss., simply are trying to change the way food companies do business.
“Food companies should be forced to follow the laws already in place,” Barrett told Legal Newsline. “They don’t.”
Barrett’s firm has combined with several other high-quality, small to mid-sized firms across the country to take on what he describes as “mega-corporations” over their allegedly misleading and illegal labeling of food products.
“Our group has filed approximately 50 cases for a variety of violations,” he explained.
In 2012, the group filed a lawsuit against Welch Foods Inc. over its grape juices, alleging the company violated federal and state law when it, among other things, labeled its juices with a “big, bold, eye-catching” no-sugar-added statement without the required disclosure that the juice had more sugar in it per ounce than a Pepsi-brand soda.
“Our cases focus on ingredient labeling,” Barrett explained.
Barrett contends class action litigation, against large companies such as Welch, serves an important purpose.
“When large corporations have a strategy to deprive the American consumer of just a little bit each transaction so that the consumer barely notices or feels like it’s not worth the effort to sue, class actions allow consumers to address injury that may be small but is huge to the corporation,” he said.
“These particular cases are interesting to me because in researching these companies and claims, I have become stunned by the amount of labeling violations designed only to influence the volume of sales. It’s no wonder that we, as a society, are sick and overweight.”
Barrett takes issue with claims that the plaintiffs bar is solely responsible for the increase in food-related class actions, all in the name of profits.
“I’m glad they [company attorneys] think that,” he said. “If the plaintiffs bar is bothering them by seeking them to comply with federal and state labeling laws, there is an easy fix. They should immediately make all their labels compliant with the law.”
He continued, “The reason that there is a ‘surge’ is that plaintiff attorneys are helping their clients by taking to task these food companies that intentionally mislead the purchasers of the companies’ products. There would be no surge without misleading information on food labels that the companies put on intentionally.”
Maia Kats, director of litigation for the Center for Science in the Public Interest, contends some of the blame may rest with plaintiffs attorneys looking for their next paycheck, but she argues the federal government hasn’t done its part.
“In terms of casting aspersions on one side versus another -- it’s more complex than that,” she told Legal Newsline.
“Yes, some other areas in class action law have tightened in terms of feasibility of prosecution. But it’s also because this area, in particular, is one in which the government enforcement agencies assigned to it -- the U.S. Federal Trade Commission, the Department of Justice and Food and Drug Administration -- really are not active in ensuring the statutes and regulations are adhered to by food companies.
“I think, in this instance, it’s more so a void between the law and the enforcement of that law.”
CSPI, based in Washington, D.C., is one of the nation’s top consumer advocates. According to its website, the group fights for government policies and corporate practices that “promote healthy diets, prevent deceptive marketing practices, and ensure that science is used to promote the public good.”
Kats also agrees that consumers simply are more health savvy these days.
“We have customers who are wanting to purchase and consume foods that are better for them,” she said.
But Kats doesn’t deny that a lot of the class actions being filed on behalf of consumers are frivolous.
“It’s sad because, from our perspective, those lawsuits really undermine our ability to make meaningful cases,” she said. “There are a lot of bad class actions out there right now, and people are doing it for the wrong reasons.
“A lot of them have absolutely no nutritional consequence. A lot of them make you go, ‘huh?’ I mean, too much ice in your drink? Who really believes a Crunchberry is a real berry?”
Again, it goes back to better regulation, Kats says.
“Compliance isn’t adequately monitored,” she said. “But stop and reflect on the number of food products out there on the market. That’s a daunting task to fund and for the FDA to accomplish.”
Improved labeling guidelines would be a start, she argues -- in particular, predominance labeling and naming.
“One activity that would help considerably, we think, to ensure that the naming of the product is accurate is to go by the predominance of the ingredients,” Kats explained.
“If you’re going to show on your products images of ‘green leafy goodness,’ for example, then those images that are on the label should be reflective of the predominance of the ingredients in the product.”
Listing percentages also would prove helpful to consumers, she said.
Barrett doubts more guidelines would help.
“I believe that the FDA and the like are doing what they can with the resources they have,” he said. “If I could wish for anything in the rulemaking process, I would remove the power of ‘big food’ to lobby its influence into the decisions of the FDA and other agencies regarding regulation formation and interpretation, particularly when it comes to labeling.
“I can’t say more guidelines would help since the food giants are ignoring them anyway.”
From Legal Newsline: Reach Jessica Karmasek by email at firstname.lastname@example.org.