STEPHEN GARDNER, CSPI: It’s a damn shame that it takes lawsuits to force companies to stop deceiving their customers
First we approached Stephen Gardner, director of litigation at consumer health advocacy group the Center for Science in the Public Interest (CSPI), which has sued scores of food and beverage giants from PepsiCo to Kellogg, General Mills, and Coca-Cola over allegedly false and misleading claims, including ‘all-natural’ claims.
FNU: Are these cases really about consumer protection, or are they more about money-grabbing lawyers?
Gardner: What amazes me about this point is that defense lawyers are not exactly handling these cases as conditions of their parole, nor are the food companies making the claims as an honest consumer education effort. Defense firms and food companies are both undoubtedly motivated by ‘opportunistic money-making’. It’s facile to criticize plaintiff lawyers, who—unlike the food companies and their lawyers alike—don’t get paid every month (whether they win or lose).
Another aspect of this attempt to shift the paradigm is that none of these lawsuits would be viable if companies were not engaged in widespread violation of consumer protection laws, which are intended to provide a way for a lawyer to take on risky cases and still have a chance at paying the rent.
It’s the same as Churchill observed of democracy—litigation is the worst form of regulation except for all others that exist.
FNU: Are lawsuits filed by the CSPI and others having a positive impact on food marketing?
Gardner: It’s a damn shame that it takes lawsuits to force companies to stop deceiving their customers, but it appears clear that at least some companies have stopped using deceptive natural claims. That said, if the word ‘natural’ never again appeared on any food label, that would be an overall good, notwithstanding the fact that some companies make products that are truly natural.
I can’t, however, think of a single mass-marketed food product that is truly natural and is labeled as such. This is probably because companies making truly natural products don’t have to tell people about it.
FNU: Is the number of lawsuits over natural claims rising, falling or leveling off?
Gardner: As more and more companies stop making deceptive natural claims, the number of suits will go down. And that would be a good thing, because then the lawyers suing companies can turn their attention to the myriad other types of consumer food fraud; ‘whole grain’ and ‘made with real fruit’ deceptions are also rife.
FNU: What can we learn from cases that have made it to class certification stage?
Gardner: There aren’t enough to draw any real lessons.
FNU: Should the FDA define ‘natural’?
Increased FTC scrutiny of these claims would help, although FTC is in fact doing its share of the work, and a very good job of it. FDA, on the other hand, has been as moribund as when Deputy Commissioner Mike Taylor announced four years ago that FDA was essentially giving up enforcing deceptive labeling claims because doing so was "a little like playing Whac-a-Mole”.
Stephen Gardner will be weighing into this debate at FoodNavigator-USA’s Natural & Clean Label Trends live 60-minute online forum on September 30. Click HERE to register for free.
