Keller And Heckman LLP: 7th Circuit Affirms Federal Law Barred Non-Identical State Law Food Labeling Requirements

Keller And Heckman LLP: 7th Circuit Affirms Federal Law Barred Non-Identical State Law Food Labeling Requirements

On October 17, 2011, the U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal of Turek v. General Mills, Inc. and Kellogg Co., No. 10-3267, Slip op. (7th Cir. October 17, 2011), by the U.S. District Court for the Northern District of Illinois, Eastern Division. In its disposition of the case, the Circuit Court altered the judgment of the district court to dismiss the case with prejudice under Fed. R. Civ. P. 12(b)(6), citing the plaintiff's failure to state a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act.

In Turek v. General Mills, Inc. and Kellogg Co., the plaintiff sued General Mills and Kellogg alleging that the companies' "chewy bars" (Fiber Plus bars and other products) were improperly and deceptively labeled because the packaging did not disclose that the bars' principal fiber content was inulin extracted from chicory root. The plaintiff characterized inulin as an inferior "non-natural" fiber because it provides fewer benefits associated with dietary fiber and can cause harm to some consumers. The Fiber Plus bars' box had on the side panel a "Nutrition Facts" table which stated that one serving contains 9 grams of "Dietary Fiber" and is 35% of the recommended "Daily Value" of dietary fiber, and on the front a circle that says "35% of your daily fiber". The court found the labeling of the chewy bars (and other products) to be compliant with the federal statutory requirement that "the 'label or labeling' of food products intended for human consumption state 'the amount of...dietary fiber...contained in each serving size or other unit of measure'" (see 21 U.S.C. § 343(q)(1)) and with all of FDA's regulations as to the form and content of labeling claims relating to dietary fiber found in 21 C.F.R. §§ 101.54(d), 101.76, and 101.9.

According to the Court, under a provision of the Federal Food, Drug, and Cosmetic Act, a state may impose labeling requirements that are identical to those found in Section 343(r) in order to create a private cause of action (where none is provided under the federal statute) to enforce the requirements; but the states are forbidden from imposing any non-identical labeling requirements (see 21 U.S.C. § 343-1(a)(5)). The court noted that with this provision Congress was seeking to avoid a situation where manufacturers would have to print 50 different labels for a product and that such a situation could arise if each state were permitted to have its own labeling requirements.

The disclaimers the plaintiff sought on the bars were not identical to the labeling requirements imposed under federal law; and so, in light of the "identicalness" requirement of Section § 343-1(a)(5), requiring them was barred by federal law. In addition the court noted that the Illinois Consumer Fraud and Deceptive Business Practices Act does not apply to actions, such as the representations on these chewy bars, that are specifically authorized by federal statutes and regulations (see 815 ILCS 505/10b(1)); leaving the plaintiff without a claim under the state law.

The opinion is available at, Turek v. General Mills and Kellogg. For more information, contact Laura Foley at foleyl@khlaw.com or Mel Drozen at drozen@khlaw.com.