Citizen Surveillance of Misleading Food Labeling

Abstract

At its core, a food label is a marketing device food manufacturers use to display their product’s most positive attributes in hopes of increasing product sales. In 1906, Congress charged the Food and Drug Administration with policing misleading labeling of food products to ensure that manufacturers present their products truthfully. As the number of food products on grocery store shelves has soared, the FDA has become a less effective enforcer of its statutory mandate. In lieu of government enforcement, state consumer protection statutes, modeled after the Federal Trade Commission Act, have given citizens the ability to directly hold food manufacturers accountable for their misleading marketing choices on food products. Consumers have taken up the mantle of surveillance of food labeling claims, and food labeling litigation has skyrocketed in the last ten years. Nevertheless, one hurdle has consistently blocked litigants from holding companies accountable for their intentionally vague labeling: the reasonable consumer test. Deferring to the Federal Trade Commission’s Deception Policy, state consumer protection statutes uniformly require a plaintiff to prove that a reasonable consumer is likely to be misled by the product’s labeling to succeed on a misleading labeling claim. In practice, this test has frequently prevented plaintiffs from succeeding beyond the motion to dismiss stage because judges have inserted their own views of “reasonable” interpretations of labeling claims, even when those interpretations are in direct contravention with known consumer interpretations of the claim and despite confirming that it is a fact question to be reserved for the jury. As a result, citizen surveillance of misleading food labeling has been restricted. This Article seeks to promote robust citizen surveillance of labeling claims by proposing that the FTC release guidance reframing the reasonable consumer test as a risk-utility analysis, similar to the factor test frequently applied in design defect litigation. A risk-utility analysis of food labeling claims would shift the focus of the inquiry from critiquing the reasonableness of the consumer’s suggested interpretation to an assessment of whether the labeling claim had a capacity to mislead given known consumer interpretations of the claim and disclaimers used by the manufacturer to clarify labeling ambiguities. This framework shift would obligate food manufacturers to be more judicious in examining known consumer interpretations and potential risks of deception when deciding whether to include labeling claims to sell their products. If food manufacturers conclude that a food labeling claim is subject to significant consumer confusion, the risk-utility analysis would require manufacturers to take steps to clarify the claim with disclaimers, further educate consumers on the meaning of the ambiguous claim, or halt use of the claim altogether.