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Lessons from Food Litigation: Managing the Interaction of Litigation, Legislation, and Regulation

By Sarah L. Olson
February 01, 2008

Food-borne illnesses and tainted food products have been a staple of product liability litigation for many decades and continue to be so now. In the last five years, however, food litigation has also turned to broader policy questions: Does tuna contain too much mercury and, if so, should someone have told us? Are fast-food restaurants to blame when someone gains too much weight or develops diabetes? Does the fact that certain foods contain partially hydrogenated oil (or trans fat, salt, sugar, or caffeine) create a cause of action on anyone's part? A new generation of food-related litigation, and class action litigation in particular, has been launched.

By and large, these policy-oriented food lawsuits have failed to survive early dispositive motions, regardless of the legal theory under which they are brought. See Mills v. Giant of Maryland, 441 F. Supp.2d 104 (D.D.C. 2006) (dismissing, as pre-empted by the Food, Drug and Cosmetic Act, plaintiffs' strict product liability claim against milk producers for failing to warn of potential lactose intolerance). Partly in response, a trend has emerged in the last 12 to 24 months. Local legislatures and public health departments are enacting ordinances and regulations concerning food, which purport to address pressing public health problems such as obesity. Some enactments ban the sale or use of certain food ingredients, while others seek to compel new or additional labeling of food products. These laws and regulations are themselves being challenged in court, sometimes successfully. This dance of litigation, legislation and regulation, and responsive litigation creates particular challenges for manufacturers and sellers and calls for a particular set of strategic responses.

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