Consumer Law & Policy Blog

Op-ed: Consumers often sign contracts they don't read or understand

Here. 

NY seeks to ensure that dietary supplements contain what they say they contain

From the New York Times this morning:

An agreement announced Monday by the New York State attorney general and GNC, the nation’s largest specialty retailer of dietary supplements, should provide protection against fraudulent herbal products that don’t contain the ingredients listed on their labels or contain unlisted ingredients that are potentially dangerous.

Under the deal, the company will use sophisticated DNA tests to authenticate the plants that will be used as ingredients in its herbal products, will conduct widespread randomized tests for the most common allergens, and will require its suppliers to do the same. The agreement ought to set a standard for herbal products and pave the way, one hopes, for much tougher national regulation of the loosely supervised supplement industry whose products are used by tens of millions of Americans.

The full story is here.

Another federal court rejects the usual food law defenses

by Steve Gardner

On March 31, another federal court rejected another a motion to dismiss another “natural” claims  lawsuit. Download here: Langan v J&J.

The first paragraph of the opinion does at least as good a job as I could of summarizing the case:

This case is about the use of the word “natural” on labels for sunscreen products. Defendant Johnson & Johnson Consumer Companies Inc. makes and sells sunscreen products under its well-known Aveeno brand name. Some of these products have prominent labels stating that they provide “natural protection” and contain “100% naturally-sourced sunscreen ingredients.” Plaintiff Heidi Langan claims that these labels are misleading—that they led her and other reasonable consumers to believe that all the ingredients in the sunscreen products were natural, when in fact the products actually contain synthetic ingredients such as in the lubricating skin lotion that is mixed in with ingredients that protect against exposure to the sun. In response, defendant readily admits that its sunscreen products contain many unnatural ingredients, but it nevertheless contends that the statements on its labels are literally true and not misleading because the ingredients in the products that actively protect a user from the sun’s rays are in fact natural. 

It’s worth a read, particularly with respect to four points:

 

1. The Court notes that whether a claim is “deceptive” is a fact question not really susceptible of determination on a motion to dismiss. This is, of course, the law but too many courts substitute the collective knowledge of the judge and law clerks for that of a reasonable consumer, so it’s always good to see this point confirmed.

 

2. The defense position that a consumer could have figured out all the fake ingredients if she had parsed out the ingredients list on the back. The Court found that making consumers play Where's Waldo with the truth was not enough, adding:

 

After all, a quick Google search indicates that even an ordinary blueberry contains quite scary sounding ingredients like “isoleucine,” “phenylalanine,” and “phytosterols,” as well as flavors with names like “ethyl ethanoate, 3-methyl butyraldehyde, 2-methyl butyraldehyde, pentanal, [and] methylbutyrate.”

 

[Emphasis mine.]

 

3. On preemption, the Court held that there is no preemption where the deception would be illegal under the FDCA as well as a state UDAP law.

 

4.  The Court rejected a primary jurisdiction argument as well, noting that "application of the primary jurisdiction doctrine is particularly inappropriate where, as here, the relevant administrative agency has shown no interest in addressing the matter.”

 

All four of these points are prime points in the defense bar’s food law playbook, so it’s good to see a Court rejecting each one.

 

First comprehensive state occupational safety/health standard database

A new public safety tool is now available: an online database of state worker health and safety requirements in the 25 states with a federally-approved occupational safety and health enforcement agency.

The database was created by Public Citizen and the Robert Wood Johnson Foundation’s Public Health Law Research program.

You can access the database on this page, which further breaks the requirements down by industry.