The Twisted Case of the ‘Deceptive’ Pretzels

Rold Gold pretzels don’t have much fat, and their label used to say so. But a plaintiff sued the company, alleging the “low fat” label was deceptive because the pretzels are . . . salty. The Rold Gold label depicts a pretzel with glistening salt crystals, but the plaintiff demanded a statement on the packaging: “See nutrition facts for sodium information.”

The lawsuit was dismissed in 2014, but how did it get anywhere in the first place? Blame the Food and Drug Administration. The plaintiff’s attorney relied on a warning letter in which the FDA accused a different company of a similar “deception.”

Warning letters are a form of informal guidance. They lack the input of key stakeholders and are open to varying interpretations. In sending them out, the FDA acts like the opposite of a regulatory agency, which is supposed to issue rules to ensure that commerce remains regular and predictable.

But at least they aren’t supposed to affect anyone other than the recipient. Yet attorneys have used them in recent years to file hundreds of class actions against food and beverage companies. These cases often cite the FDA’s nonbinding guidance as evidence that a company has violated state consumer-protection laws.

In one recent flurry of suits, plaintiffs have taken companies to task for using the term “natural” to challenge products that contain genetically modified ingredients or are distantly touched by genetic modification. One suit against Dannon challenged its claim that its yogurt was “all natural.” The plaintiff did not allege that any ingredient in the yogurt was artificial. The claim was that the yogurt was not natural because cows that produced the milk ate genetically modified feed.

This meritless suit was made possible in part because of the FDA’s informal statements on the term “natural.” The agency has no official position as to what constitutes “natural” products. But the agency has an unofficial—if tautological—view that “natural” means nothing artificial or synthetic has been included in, or added to, a food that would not normally be expected to be in that food.

Read more of this The Wall Street Journal op-ed by Sheldon Bradshaw and Marisa Maleck by clicking here.

Photo: Michael Nagle/Bloomberg News