JONATHAN EMORD: The industry is repeatedly held hostage to suits that are hardly more than frivolous

Next we spoke to Jonathan Emord, president at Emord & Associates.

What legislative issues will be top of mind in 2016?   ​

The ultimate fate of the DARK Act ​[The Safe and Accurate Food Labeling Act  or HR1599​​ - which passed in the House of Representatives in July] in the US Senate is a top priority, along with whether FTC will honor judicial decisions that repeatedly rebuke the agency for its unreasonable demand for a fixed clinical trial standard for all claims in certain categories.​ 

Will the FDA probe into natural labeling mean fewer lawsuits?​

There is likely to be no end to claims based class action suits against food companies until such time as the courts or legislatures impose significant preliminary proof requirements as a condition precedent to bringing these actions.  The law, particularly in California, so strongly favors plaintiffs that industry is repeatedly held hostage to suits that are hardly more than frivolous.​

Can you cite a case that could change the food litigation landscape? ​

If the Supreme Court grants certiorari in POM v. FTC​​, the opportunity will exist for the Court to ensure effective judicial review of FTC decisions by requiring de novo judicial review of those actions, at least in cases where respondents raise First Amendment defenses, rather than the broadly deferential standard of review now in place.​

Any other thoughts?​

Judicial or legislative action is sorely needed to eliminate FTC’s inherent conflict of interest which results in abuses of discretion.  Presently, the FTC serves as both the party that initiates prosecutions and the ultimate decision-maker (with its administrative law judges providing only advisory opinions).   Is it any wonder then that the FTC never decides against itself?  There is no justice in such a system.  It cries out for reform.  ​

Picture: ​Freedom from Choice