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IDFA Submits Brief to U.S. Supreme Court to Ban Private Suits under FDCA

Jun 23, 2008

IDFA has joined three other food industry organizations in filing an amicus, or "friend of the court," brief with the U.S. Supreme Court supporting a petition to review a recent California court case that allows private lawsuits under the federal Food, Drug and Cosmetic Act (FDCA). In the brief, the organizations explain that the lower court ruling, if allowed to stand, would have the unintended consequence of opening all food companies and retailers to class action lawsuits on labeling issues.

IDFA filed the brief along with the Food Marketing Institute, the Grocery Manufacturers Associations and the American Frozen Food Institute. A "friend of the court" brief may be filed by organizations that are not party to the litigation, but believe that the court's decision may affect their interests.

The brief challenges the ruling of the Supreme Court of California in the case of Albertson's Inc. v. Jennifer Kanter, which covered labeling and the use of artificial coloring in salmon. This ruling, decided in February, interpreted an amendment to the FDCA to allow private citizens the right to bring individual and class action suits to enforce FDCA rules. For the last 70 years, federal and state government regulators have had sole responsibility for enforcement of FDCA rules, mostly through the Food and Drug Administration (FDA).

"FDA knows which high priority regulatory concerns to target for strict enforcement actions, which deserve only warnings or no action at all, and which require a wait-and-see approach due to still developing scientific or empirical evidence," the brief states. "The California Supreme Court's decision throws that sensible regulatory scheme out the window."

IDFA and the other organizations argue in the brief that the interpretation of the law is too broad. By opening the door to costly class action suits, the decision would have the unintended effect of driving up already spiraling food prices and undermining, rather than enhancing, current food safety initiatives.

"Allowing these lawsuits would not make food safer for consumers, because it would interfere with the FDA's ability to properly regulate the industry," the brief states. "The immense fees that would occur from these lawsuits would put a severe strain on the food industry. These fees would have to be paid by passing costs onto consumers by raising food prices."

Private actions are not necessary for consumer protection, the brief concludes, because FDA vigorously enforces the current regulations and existing tort law allows consumers to file individual suits.

The brief supports a Petition for Writ of Certiorari filed with the U.S. Supreme Court by Alberson's Inc., asking the Court to review the California court's decision. The review on writ of certiorari is not a matter of right, but a judicial discretion, and will only be granted for "compelling reasons," according to the rules of Court.

This petition will likely be considered at the Court's first conference in late September.

To read the brief filed by IDFA, click here. For more information, contact Clay Hough, IDFA senior group vice president, at or (202) 220-3516.


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