Sizing Up Food and Supplements Claims by Product Testing

From ice cream to protein powder, food and supplements manufacturers increasingly must defend against allegations that their products do not measure up in “independent laboratory testing” of ingredients.

Faegre Baker Daniels attorney Alyssa Rebensdorf authored an article in the American Bar Association’s Products Liability Newsletter on plaintiffs’ tactics of referring to conclusive pre-litigation product testing. Rebensdorf explains that despite the expanded use of these claims by class counsel and other consumer advocates, product testing allegations have proven vulnerable to 12(b)(6) challenges on preemption grounds. The problem rests in plaintiffs’ failure to specifically assert that their testing complies with strict FDA guidelines and the products do not satisfy “safe harbor” provisions that allow for limited deviation from labeled contents.