Will FDA Guidance, Or Lack Thereof, Affect Food And Beverage Litigation?

With the number of class action lawsuits brought against food and beverage manufacturers over allegedly poor labeling and marketing on the rise, companies and their attorneys are looking for more guidance from the U.S. Food and Drug Administration.

But would more guidance, guidelines, rules and regulations, or better enforcement, slow the surge?

A spokeswoman for the FDA told Legal Newsline that the agency does not track class action lawsuits filed against food and drug makers.

“It is the responsibility of the manufacturer to ensure their food is safe and properly labeled,” Lauren Kotwicki, an agency spokeswoman, said in an email.

Defense attorneys argue more guidance by the FDA and better enforcement could have an impact on the number of the class action lawsuits being filed.

“Certainly if the FDA did something about some of these areas — the “natural” claims is a big one — it would make a big difference,” said David Biderman, a partner in Perkins Coie’s Los Angeles and San Francisco offices.

“Because then we, as defense attorneys, can say it’s preempted, that the FDA has spoken on the issue.”

But Yvonne McKenzie, a partner in the health effects and food and beverage practice groups at Pepper Hamilton’s Philadelphia office, doubts enforcement will improve, given the “latest political dynamic” and push for less government regulation.


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