A recent federal court decision added to a contradictory body of case law about the level of laboratory test detail plaintiffs must present in deceptive food-labeling claims against manufacturers, three McGuireWoods lawyers wrote in a July 25 Food Dive column.
Partners James Neale and Trent Taylor and associate Ben Abel wrote that while some courts have ruled that plaintiffs need not present testing data at the pleading stage, others have been more stringent when a claim alleges misstatements on the nutrition facts label.
In Robinson v. J.M. Smucker Co., a putative class plaintiff’s complaint survived a dismissal motion even though the plaintiff failed to plead lab testing details in alleging that Smucker’s Crisco brand 100% Extra Virgin Olive Oil Non-Stick Spray is not really 100 percent extra virgin olive oil. The plaintiffs said they based their claim on “extensive clinical testing conducted by a leading laboratory,” yet did not provide it. Smucker’s, in its motion to dismiss, argued that the plaintiffs relied on unidentified lab testing and failed to compare the test results to federal standards.
The court held that extensive testing data are not required to state a claim and are better suited to later stages of the case.
Still, the authors explained, manufacturers have had more success when plaintiffs target very specific claims in nutrition facts labels. They noted the dismissal of a claim alleging that Whole Foods Market had falsely stated that various Greek yogurt products contained 2 grams of sugar per serving, yet submitted only findings published by Consumer Reports, unsupported by any independent testing.