With the recent uptick in consumer fraud class actions targeting food and beverage labels, and opinions like the Ninth Circuit’s in Williams v. Gerber, 552 F.3d 934 (2009) (reinstating a proposed class action and finding that consumers should not be “expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box”), the findings of a recent Food and Drug Administration health and diet survey are good news to manufacturers of food and beverage products.

On March 2, 2010, FDA released the results of a nationwide survey conducted in 2008 on consumer behaviors, knowledge, attitudes, and beliefs about health and diet. Specifically included were questions about consumer use of packaging labels. Fifty-four percent of consumers “often” read the food label the first time they buy a product. Of these, two-thirds do so to determine how high or low a food is in terms of calories, salt, fat, etc., and more than one-half do so to get a general idea of the food’s nutritional content. More than one-half of those surveyed (56 percent) believe that “only some” or “none” of nutrient claims such as “low fat” or “high fiber” are accurate. Only about one-third (31 percent) “often” use front-of-the-package descriptors in making their purchasing decisions.

The survey findings are particularly noteworthy in the class action context. Not only does the survey show that most consumers approach front-of-the-package food labels with skepticism, it also provides statistical evidence supporting the varied reactions consumers have when it comes to food labels. This variety supports an argument that no “typical” label-interpretation claim exists, as well as an argument that individualized fact finding regarding how each putative class member responds to a food label would “predominate.” That the survey contrasts the 2008 results to similar surveys conducted in 2004 and 2002 (with the passage of time, consumers are more likely to read the full label) also provides a basis for arguing against certification of proposed classes defined to span these various years.

Analysis prepared by Global Product Liability Partner Holly Pauling Smith, who focuses her practice on class actions and complex litigation.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.