Anti-Tobacco Law Professor Claims Credit for Food Litigation Explosion
George Washington University Law Professor John Banzhaf has issued a press
release highlighting recent action the Food and Drug Administration took
against a food company that purportedly misbrands one of its products by
declaring it “All Natural” while making the product with a synthetic chemical
preservative ingredient. According to Banzhaf, the agency’s warning letter is
“likely to lend support to and encourage an ever-growing number of major class action law suits being filed on these grounds, says the public interest law
professor whose earlier movement to use legal action as a weapon against
obesity apparently inspired these new legal actions.”
He claims that The American Lawyer recognized how he started this litigation
movement, noting in an article that he used the courts to address obesity,
“just as he had earlier done in leading the use of legal action as a weapon
against smoking.” Banzhaf further states, “The movement which Banzhaf
started has now resulted in at least ten successful fat law suits which have
forced food companies to fork out more than $20 million and make major
changes in the way their products are advertised, promoted, and sold. ‘The
newer “natural” law suits should force companies to think twice before simply
slapping an “all natural” label on their products and their advertising, seeking
to take advantage of vagueness in the definition of the world “natural,” and in
the hopes that people will be tricked into thinking that an “all natural” product
is safer or healthier,’ says Banzhaf.”
Banzhaf suggests that lawsuits challenging “all natural” labeling are easy to
win because (i) “plaintiffs may not necessarily have to show that the claim
is expressly false, and/or that some identified people were in fact mislead
to their detriment”; (ii) judgments are based “not on the brightest and most
educated consumer, but rather on those who, because they may not be quite
as smart or as educated, may be deceived by the wording”; and (iii) consumers
cannot verify whether a product is actually “natural,” thus “the burden to avoid
misrepresentation by properly labeling its product must be on the advertiser.”
See Press Release of John Banzhaf, December 7, 2011.
