Food companies increasingly are being hit with claims about their labeling. "You may have included this particular ingredient on your label, and you may have accurately reported how much of it is in your product," plaintiffs' counsel seem to be saying, "but we want you to pay us huge sums of money because you didn't tell us where the ingredient came from." Diplomatically speaking, such claims are horse puckey.
That's why it's fitting that Judge Posner's recent decision affirming dismissal of such a claim came in a suit about fiber. See Turek v. General Mills, Inc., No. 10-3267, Slip op. (7th Cir. October 17, 2011). In Turek, plaintiff sued the makers of certain brands of "chewy bars," including Kellogg's chocolate-chip chewy bar called "Fiber Plus." The Nutrition Facts on the package discloses that a serving contains 9 grams of dietary fiber, and that this is 35% of a person's Daily Value of dietary fiber. The front of the package touts, "35% of your daily fiber."
The fiber in these chocolate chip chewy bars is inulin that has been extracted from chicory root. In fact, it's listed that way in the ingredients right on the Nutrition Facts on the label. Plaintiff claimed that such fiber is somehow inferior to the unprocessed fiber found in bananas, onions, leeks, Jerusalem artichokes and other veggies. She alleged that it causes some people to have stomach problems and can be harmful to women who are pregnant or breast feeding. And thus plaintiff sued under the Illinois Consumer Fraud and Deceptive Practices Act, alleging that the Act is violated and consumers are defrauded by the defendants' failure to disclose that the inulin is not "natural," but instead is processed.
The trial court had dismissed the case for lack of federal subject matter jurisdiction, based on its conclusion that the claims were preempted by the federal Nutrition Labeling and Education Act.
Judge Posner, writing for a unanimous panel of the Seventh Circuit, said the trial court had gotten it only partially wrong. Yes, the claim was preempted, but the disposition should have been a dismissal on the merits under Rule 12(b)(6), rather than a dismissal for lack of jurisdiction.
The NLEA disclaims any intent to occupy the field of food product labeling. Nevertheless, it does preempt state law claims by prohibiting states from imposing any requirement respecting a food label that is not identical to the requirement of section 343(r) of the Food, Drug, and Cosmetic Act. Thus, a state may impose penalties for violating a federal requirement under section 343(r), but it cannot require anything different than federal law. Slip op. at 5. As Judge Posner explained,
It is easy to see why Congress would not want to allow states to impose disclosure requirements of their own on packaged food products, most of which are sold nationwide. Manufacturers might have to print 50 different labels, driving consumers who buy food products in more than one state crazy.
Slip op. at 6.
The court then looked at federal regulations governing labeling regarding fiber. They require disclosure of the amount of dietary fiber contained in each serving size, but do not require any statement regarding whether it is "natural" or processed. Accordingly, plaintiff's claims are preempted because they would require different labeling than the federal law. Judge Posner conceded that the disclaimers plaintiff proposed might be consistent with the federal regulatory scheme, but "consistency is not the test; it identity is." Slip op. at 7-8. Because the state law claim imposed requirements that were not identical to federal law, the state law claim was preempted.
Judge Posner also noted that even if plaintiff's claim had not been preempted, it would have been subject to dismissal under Illinois law because ICFA has a safe harbor provision for actions that are specifically authorized by a regulatory body or federal or state law. Because "[t]he representations on the packaging of the defendants' chewy bars concerning dietary fiber are specifically authorized by the federal statutes and regulations that we've discussed," there could be no consumer fraud claim brought under ICFA. Slip op. at 8.
Judge Posner's decision in Turek -- dumping the putative fiber class -- makes tremendous sense. It remains to be seen, however, whether it will have the effect of flushing similar cases against food companies from the system.