A Supreme Court ruling makes misleading food labeling a risky proposition

Posted by
June 19, 2014

court

By BILL BONVIE

In my previous blog, which talked about the misrepresentation of Old Bay Seasoning in a line of Herr’s “Old Bay Seasoned” snack foods containing monosodium glutamate (which is not an ingredient in Old Bay itself), I concluded with the following statement:

“Technically, of course, they may have fulfilled the requirements set by the Food and Drug Administration that monosodium glutamate need only be listed among the ingredients.  But there’s no getting around the implication that ‘Old Bay Seasoned’ means seasoned with Old Bay – not an ‘entirely different product’ that could be hazardous to your health and brain.”

Now, it looks like that idea may have gotten some legal validation – from no less than the U.S. Supreme Court.

The case at issue is one in which the juice manufacturer POM has sued the Cocoa-Cola Company, alleging that the label of Coke subsidiary Minute Maid’s “Pomegranate Blueberry Flavored Blend of 5 Juices” beverage is misleading, since the product is actually 99 percent apple and grape juice.

Last week, the high court ruled 8-0 that Pom can proceed with its lawsuit. According to the Associated Press, “(l)ower courts had ruled in favor of Coke because the label conforms to the law and to Food and Drug Administration rules. But the Supreme Court reversed, finding that the juice label may technically comply with FDA rules but may still mislead consumers for different reasons.”

Bingo!

In other words, from here on in, it may not be quite enough for food companies to use the fact they’re following narrow FDA criteria as an excuse for attempting to fool the public. They may well have to start becoming a lot more honest in labeling practices (and that’s one of those rare points on which all the justices present, conservative and liberal, concurred).

And that should be a be a real source of concern to all those Big Food brands that have been playing fast and loose with the facts of what their products actually contain, as opposed to how they’re being represented. Hopefully, lawyers for these companies will start advising their marketing departments and ad agencies that they’ll be on pretty thin ice from now on if they think simply adhering to FDA edicts, like listing an ingredient on the back, puts them in the clear to hoodwink consumers.

Or as Pom’s parent company said of the decision, it “will translate into higher assurance for consumers that the labels on beverage and food are accurate.”

Fitting right in with FIT’s mission

This ruling comes as an especially significant – and encouraging – development to us here at Food Identity Theft (and our sponsor, Citizens for Health), as one of our jobs since this blog began has been to keep you apprised of the various ways in which products are often misrepresented. These include some examples that are very similar to Minute Maid’s giving an exaggerated impression of the amount of pomegranate juice its drink blend contained – such as products that use the term “blueberry” in their name that actually have little or no blueberries.

While such misrepresentations amount to consumer rip-offs – and often divert customers away from buying more beneficial items that live up to their label claims, as Pom has alleged —  other instances of misleading labeling and promotion, such as the one involving the “Old Bay Flavored” snacks, can put the health of unsuspecting consumers at risk.

So might this ruling “open the door to more litigation against food makers for deceptive labeling,” as the AP account asserts? We hope so. The prospect that food companies will think twice from now on before they engage in such practices is a positive outcome for shoppers faced with the daunting task of having to analyze products before they buy them.

So is the idea that, as Claudia Vetesi, a San Francisco attorney specializing in false advertising class action lawsuits put it, an increase in “business to business litigation” over food labeling may well resuIt.

In other words, Big Food may now have to answer to someone other than federal regulators.