In the News

Bryan Anderson Quoted in Health Law Daily

Offers Perspective on Issues of Concern to Food Manufacturers

January 15, 2014

Bryan J. Anderson, Chicago-based member in the Firm’s Litigation Department whose practice focuses on product liability defense, with particular emphasis on pharmaceutical products and medical devices, was quoted in a recent article in Health Law Daily. This online daily reporting service, produced by Wolters Kluwer, provides attorneys who work on health-related matters with breaking news, court decisions, legislation and regulatory activity.

In an article themed “California ‘food court’ dominates 2013 food litigation on misleading and deceptive labeling claims,” Anderson provides commentary on a variety of notable food litigation decisions made in 2013.

Bioengineered Foods

The key legal issue here is whether bioengineering or genetically modified organisms (GMOs) alter a food product to the extent that claims such as “all natural” or “natural” are misleading or deceptive. While the Food and Drug Administration (FDA) uses a nonbinding industry guidance (issued in 2000) as a summary of its current thinking, Anderson says it’s difficult to predict the rate of FDA progress on this front, given the agency is working to finalize regulations for the Food Safety Modernization Act (FSMA).

Anderson acknowledges, however, that food manufacturers may desire additional FDA guidance on this issue because “the last thing food manufacturers want is to navigate fifty different state laws regarding genetically engineered ingredients.”

"All Natural" Claims

Claims of “natural” or “all natural” make up the majority of allegations asserted against food producers and manufacturers for misleading or deceptive labeling. While the Nutritional Labeling and Education Act (NLEA) is explicit in stating that the Act preempts state-law-based food labeling claims that seek to impose requirements that are “not identical to the requirement[s]” established in the Act, Anderson observes that food manufacturers may face “an uphill battle” invoking preemption “if there is no FDA regulation directly on point with a plaintiff’s labeling claims.”

The article also addresses other topics that are currently hot subjects of debate among food and ingredient legal scholars, among them claims involving yogurt and milk, butter substitutes and the U.S. District Court of Northern California’s admonishment to the FDA to publish its final regulations regarding food safety no later than June 30, 2015.

To read this article in its entirety, click here.