The food industry has become a fertile ground for class action lawsuits over the last few years and shows no signs of slowing down. New cases are decided daily. There are several factors that drive this trend and that are likely to propel forward new cases in the coming years.

First, there is little or no statutory or regulatory guidance governing important labeling issues. Plaintiffs’ lawyers have filled this gap left open by the Food and Drug Administration (FDA) and Congress. Many of the recently filed lawsuits allege claims based on false and misleading advertising regarding issues that the FDA has either refused to or not substantially addressed. Litigation relating to products marketed as being “all natural” or “natural” is one of the most prominent examples of this trend. Specifically, the FDA has not defined the term “natural” and “has not objected to the use of the term if the food does not contain added color, artificial flavors, or synthetic substances.” Thus, several courts have concluded that lawsuits challenging “natural” or “all natural” claims on food labels are not preempted or barred by the doctrine of primary jurisdiction, and have allowed such litigation to move forward. In the absence of comprehensive federal laws or regulations governing this area, states have adopted their own regulations regarding food-labeling issues, such as those pertaining to genetically modified organisms (GMOs). Plaintiffs’ lawyers are seizing the opportunities created by the lack of regulatory and legislative action in this area.