To no one’s surprise, the filing of class action lawsuits against food companies continues at a rapid pace in California. The latest suit, filed on April 12th, alleges that certain King Oscar products labeled as “Rich in Natural Omega-3″ and “Excellent Source Omega-3″ are misleading and fail to disclose “risk-inducing” nutrients.
First, the Complaint alleges that “[w]here a particular nutrient does not have an established daily value (DV) under FDA regulations, food producers may not state on their food labels that their food product is a ‘good source’ of the nutrient, or use a comparable phrase, such as ‘excellent source’ or ‘rich in.’ 21 C.F.R. § 101.54.” It then alleges that Bumble Bee violated this regulation “by representing that its products are an ‘excellent source’ of omega 3 or ‘rich in’ omega 3 and by failing to specify whether its omega 3 nutrient content claims are referring to ALA, DHA or EPA omega 3 fatty acids.”
Second, the Complaint alleges that these same products were improperly labeled under 21 C.F.R. § 101.13 because they fail to include a disclosure statement that the products included more than 13.0 g of fat, 4.0 g of saturated fat, 60 milligrams (mg) of cholesterol, and/or 480 mg of sodium per serving. This prong of Plaintiff’s complaint is included, no doubt, as a means of bolstering the contention that plaintiff and “similarly-situated persons” were somehow harmed by Bumble Bee’s labeling practices.
Significantly, the Complaint continues the ominous trend of citing FDA warning letters to bolster its claims. This time, Plaintiff quotes extensively from an FDA Warning Letter to Natural Guidance LLC to help legitimize its claims and asserts that “[o]ther companies that sell similar Omega 3 nutrient content claims have been found to be in violation of the laws concerning such claims.” That warning letter involved some relatively strident claims by a maker of nutritional supplements. Notably, the Bumble Bee products have more in common with the walnuts sold by Diamond Food which also received of an FDA warning letter regarding Omega 3. The Diamond Food warning letter was the target of legitimate criticism because it seemingly condemned the communication to consumers of properly qualified scientific research. This is similar to the criticism that POM Wonderful has leveled against the FTC, i.e., it is improper to ban non-deceptive speech regarding properly supported, qualified health claims.
Putting aside the FDA’s and FTC’s respective views on this topic, I think the Plaintiff here will a difficult time convincing anyone that they were actually mislead by the Bumble Bee labeling at the time of purchase.
Please see the entire Complaint here.