Concerned consumers may inspect food labels while grocery shopping, wary of ingredients like artificial preservatives, stabilizers, and flavor enhancers, or claims like “heart safe” or “100% natural.” Yet, such diligence can be insufficient to protect against negligent food manufacturing and fraud, the latter of which has been dubbed economically motivated adulteration (EMA).
The U.S. Food and Drug Association defines EMA as the intentional removal or substitute of a valuable ingredient or part of a food, think: honey blended with corn syrup, extra-virgin olive oil diluted with cheaper vegetable oil, and spices that contain lead-based dyes to appear more appealing. Additionally, food manufacturers can fumble quality control, leading to the addition of unwanted and sometimes toxic ingredients.
Given the growing American food, beverage, and tobacco manufacturing industry, valued at over $500 billion in 2021 according to the USDA, its unsurprising that participants might cut corners to secure a larger piece of the pie. Indeed, an article from Total Food Service published earlier this month reported that food fraud is on the rise.
Likewise, and according to Docket Alarm analytics, corresponding lawsuits are also tracking upwards. Using data generated by a search for more than 30 companies ranked as top domestic food and beverage manufacturers and refined by the PACER case tag “fraud,” this article dives into trends and anomalies of food fraud and negligence lawsuits and takes a look at top plaintiff and defense firms in the field.
Overview
Docket Alarm data demonstrates an uptick in food fraud and negligence lawsuits since 2013, whether in state or federal court.
The monthly new filing graph is also characterized by months with outsized numbers of filings compared to the rest. A closer look at these filing spikes shows that new cases often come in response to breaking news.
For example, in January 2023, Trader Joe’s Company and Mars Inc. were sued after Consumer Reports released findings that their dark chocolate products were contaminated with heavy metals, as two lawsuits alleged. Other companies implicated in the lead and cadmium exposé included those selling branded chocolate under the names Lindt, Godiva, Endangered Species, and Scharffen Berger, among others.
In March 2021, Gerber Products Company and six other baby food manufacturers were accused of producing baby food contaminated with heavy metals exceeding allowable limits after the U.S. House of Representatives’ Subcommittee on Economic and Consumer Policy, Committee on Oversight and Reform released an investigative report. While the news shook consumer trust, it did not translate to legal victory for aggrieved parents in the case of at least one defendant.
Gerber Products Company secured dismissal of the consolidated cases last October after an Alexandria, Virginia court tossed the complaint on the threshold issue of standing, and in the alternative, that the FDA, not a court, need determine which foods are unsafe under the primary jurisdiction doctrine.
Suits against Nurture, Inc. were consolidated in the Southern District of New York where motion to dismiss briefing is currently underway.
Most Sued Companies
Docket Alarm defendant data reveals that some of the largest names in food are also the ones most often blamed for food-related fraud or tort. In the case of the Coca-Cola Company, 12 of the 40 listed cases were brought in the Northern District of California and span the past ten years.
In 2014, multi-district litigation concerning Coca-Cola’s product marketing and sales practices was transferred to San Francisco for resolution. Last year, the Ninth Circuit dismissed the case for want of standing, affirming the judgment of the district court.
Other cases against the beverage titan dispute the veracity of health claims listed on Minute Maid-brand juices and the deceptive nature of labelling Diet Coke as “diet.” They have also questioned Fanta-brand berry juice drinks purporting to have “100% natural flavors,” and in the case of the Sierra Club, contest the company’s “100% Recyclable” label affixed to certain single-use plastic bottles.
Representation
In the food fraud and negligence arena, one firm dominates plaintiff representation: Sheehan & Associates. As previously reported, the firm, spearheaded by Spencer Sheehan specializes in “small harm” mislabeling and deceptive marketing food class actions.
By contrast, a more even distribution of work typifies the defense field, according to Docket Alarm analytics.
Regulatory Note
In addition to facing private suits, food and beverage manufacturers face action from federal and state governments. The FDA not only has detection and alert programs in place, but also calls upon the Department of Justice to bring civil and criminal suits against fraudsters.
For example, in 2019 and 2020, the owners of Casey’s Seafood received prison sentences for repackaging foreign crab meat as blue crab caught in the U.S.
Likewise, in 2021,Valley Processing was penalized for selling juice to school lunch programs containing high levels of arsenic and patulin. According to the lawsuit, the company had a practice of storing contaminated grape juice for a long time in a dirty environment, then blending it with newer batches to hide the old juice’s poor quality and make it appear of greater value.
Further Food for Thought
According to the FDA, some experts estimate that food fraud affects 1% of the global food industry at a cost of about $10-$15 billion a year, although some more recent expert estimates put the cost as high as $40 billion a year. With rising commodity and gas prices, companies may feel even more pressure to squeeze margins and take chances by foregoing quality control, cutting corners with ingredients, or making false claims about a product’s virtue. Lawsuits are sure to follow; the question is, to what end?
