Seventh Circuit Finds Certain Food Labeling Fraud Claims Are Preempted

Earlier this month, the United States Court of Appeals for the Seventh Circuit, which has jurisdiction over federal cases arising in Illinois, Indiana, and Wisconsin, ruled that a plaintiff's claims for fraud in certain food labeling were preempted by federal law, specifically the Food, Drug & Cosmetic (FDC) Act and related FDA regulations. The case was Carolyn Turek v. General Mills and Kellogg and involved the labeling of the defendants' "chewy bars." The "Nutrition Facts" portion of the label stated that a serving contained 9 grams of "Dietary Fiber" and that 9 grams represented 35 percent of the "Daily Value" of dietary fiber. A circle on the front of the box also stated "35% of your daily fiber."

Ms. Turek's Complaint alleged that the principal type of fiber, by weight, in the defendants' chewy bars is inulin from chicory root extract. Ms. Turek alleged that inulin so extracted was "non-natural" because it was processed and that it provided fewer of the health benefits of consuming fiber than other types of fiber and, indeed, was actually harmful to certain people. The Complaint alleged that the labeling did not include any disclaimer about the inferior nature of the type of fiber in the defendants' chewy bars.

The court stated that the Nutrition Labeling and Education Act of 1990 blocks states from imposing any food labeling requirement that is not identical to the requirements of section 343(r) of the FDC Act, 21 U.S.C. § 343(r). Although states can ask the FDA for an exemption from this "identical" requirement, the court noted that Illinois had not done so. Thus, the court turned to the labeling requirements of the FDC Act and found that section 343(q)(1)(D) requires labels to state "the amount of  ... dietary fiber ... contained in each serving size or other unit of measure." The court further observed that the labels of the defendants' chewy bars complied with the FDA's regulations for dietary fiber found at 21 C.F.R. § 101.54(d) and for health claims for dietary fiber found at 21 C.F.R. § 101.76.

With that background, the court ruled that the disclaimers about the alleged inferiority of inulin that Ms. Turek wanted the defendants to add to the labels of their chewy bars were not identical to the requirements of federal law, "and so they are barred." The disclaimers were not required by federal law and therefore could not be required by states. The court ordered the plaintiff's case to be dismissed with prejudice.

Additionally, the court noted Ms. Turek based her claim on the Illinois Consumer Fraud and Deceptive Business Practices Act. That Act expressly does not apply to "actions or transactions specifically authorized by laws administered by any regulatory body ... of ... the United States." Because the statements about dietary fiber on the labels of the defendants' products were authorized by federal regulations, the court found an independent basis to dismiss the plaintiff's claim.

The Seventh Circuit's Turek decision is important not only because of the end result, but also because the court's analysis was primarily legal; that is, the court's decision did not depend on any facts other than the contents of the defendants' labels. The rest of the decision flowed from the language of the FDC Act and the FDA implementing regulations. Although the Court's opinion is largely silent on the proceedings in the lower court, this case could have been - and future cases based on similar allegations certainly should be - resolved without the expensive and time-consuming discovery into the truth of the plaintiff's allegations.