Campbell Soup Company (“Campbell”) has moved to dismiss a putative class action lawsuit alleging that Campbell’s Chunky™ Healthy Request® Grilled Chicken & Sausage Gumbo Soup product is falsely and misleadingly advertised as “healthy” because it contains partially hydrogenated oils (PHO’s, i.e. artificial trans fats) that are harmful to human health.
In its motion, Campbell argues that the USDA’s review and pre-approval process for labels pre-empts the suit because that regulatory framework specifically looks at whether labels are false or misleading and includes “pervasive” regulations relating to “healthy” claims. Campbell contends that these regulations — as propounded pursuant to the Poultry Products Inspection Act and the Federal Meat Inspection Act — prohibit any consumer protection claims under state law.
Ultimately, the key question will be whether the Court accepts that the suit seeks to impose requirements on “approved labels” that add to, or differ from USDA’s requirements relating to “healthy” claims. In some cases, courts have rejected preemption arguments on the grounds that the lawsuit seeks to help, rather than hinder, the federal objectives. But Defendants may have an uphill claim to the extent the court agrees with Campbell that its labels fully comply with USDA regulations for “healthy” claims, which do not expressly prohibit the existence of trans fats.
It was about as surprising as gridlock in Washington D.C. when a putative class action was filed yesterday (April 22) against Kind LLC following an FDA warning letter dated April 17th regarding alleged “healthy” claims on Kind’s snack bars.
In the warning letter, the FDA asserted that the labels of certain Kind snack bars bear the claim “Healthy and tasty, convenient and wholesome” in connection with statements such as “good source of fiber,” “no trans fats,” “very low sodium” and “+ antioxidants.” The FDA stated, however, that none of those products “meet the requirements for use of the nutrient content claim ‘healthy’ that are set forth in 21 CFR 101.65(d)(2).”
To no one’s surprise, less than a week after the warning letter, a putative class action lawsuit was filed that piggy-backed off the FDA warning letter. In the Kind Lawsuit, plaintiff Charity Bustamante simply contends that certain Kind snack bars “are misbranded in violation of the Federal Food, Drug and Cosmetic Act … for the reasons set forth in a warning letter that the FDA sent to Defendant on or about March 17, 2015.”
In addition, plaintiff alleges that Kind LLC “falsely and prominently labels [certain Kind snack bars] as ‘All Natural’ and ‘Non GMO,’ while manufacturing the Products with genetically modified and non-natural, highly processed ingredients including soy lecithin, soy protein isolate, and canola oil.”
Based on these allegations, the plaintiff asserts the usual claims for: (1) breach of express warranties; (2) violations of California’s Consumers Legal Remedies Act; (3) violations of California’s False Advertising Law; and (4) violations of California’s Unfair Competition Law. Please see the entire Complaint here.
Just last month, a putative class action against Kind LLC was dismissed with prejudice that involved “no refined sugars” claims on its Healthy Grains products. In light of the FDA warning letter in the recently-filed case, however, obtaining a similar ruling in the early stages will be more difficult.