STEVE GARDNER: All the lawsuits have prompted companies to engage in enlightened self-interest ... and change their labels
By Elaine Watson
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Next we spoke to Steve Gardner, of counsel at Stanley Law Group.
What's on your radar for 2016?
If FDA continues along its current path of requiring Nutrition Facts Panel (NFP) disclosure of added sugars, manufacturers who tart up their food with added sugar have some explaining to do. From a consumer standpoint, forcing food companies to be clear about their ingredients could well have the same salutary effect we saw when FDA required disclosure of trans fats—many companies chose to eliminate trans fats rather than let people know the truth.
On the GMO front, it’s pretty clear that FDA will continue to keep its head buried in the sand and fail to do anything to let consumers know about the presence of GMOs.
Will FDA probes in evaporated cane juice and natural labeling mean fewer lawsuits over these terms?
I sure hope companies listen to FDA even when it breaks from its usual practice of doing their bidding. I’ve never seen a more bald-faced deception than the created name “evaporated cane juice”—the only reason for using up more space on a label is to trick consumers into thinking it’s somehow a better type of sweetener.
It’s undeniable that the lawsuits have had the effect of getting some companies to engage in the enlightened self-interest of not getting sued. That’s good.
Can you cite a case that could change the food litigation landscape?
The Supreme Court’s POM decision was a clear statement that FDA law is not the only way to control rapacious behavior by food companies, and I don’t see anything on the horizon that is of that level of significance. There are several food cases in the Ninth Circuit, but they are almost entirely procedural, and unlikely to have any broad impact.
As a lesson for plaintiff lawyers, we can look to the evaporated cane juice cases. I’ve never seen a clearer instance of deliberate deception (using a non-FDA-approved term to trick consumers about the amount of sugar in the product), but my concerns that courts would find these cases to be trivial (even though they are not) has proven to be true in some instances, with courts going out of their way (and beyond the parameters of the law) to find a way to dismiss a case. I regularly urge other plaintiff lawyers to triage their cases with the reaction of the court in mind.
Picture: Steve Gardner, pictured left, at Food Vision USA in Chicago with FoodNavigator-USA editor Elaine Watson and Perkins Coie attorney David Biderman