Food Fight: FDA Preemption And Food Labeling Claims

Law360 (January 27, 2011, 2:14 PM EST) -- Private litigation alleging express or implied misrepresentations in food labeling has recently exploded in volume and scope. Because the content of food labeling is subject to U.S. Food and Drug Administration approval and oversight, defendants have raised federal preemption defenses to such litigation. The results, so far, have been all over the lot. This article seeks to extract some order from the current chaos.

Relevant Federal Statutory Law Concerning Food

There are two primary sources of FDA authority over food labeling. The Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. §331(b), has generally prohibited "misbranding" of food for over a century....

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