In a clear victory for food companies, the 7th Circuit emphatically rejected a consumer’s attempt to use state law to charge fraud in the nutrition labeling and marketing of cereal bars that she alleged contained an inferior form of fiber.

The court asserted that such claims are preempted by the federal Nutrition Labeling and Education Act (NLEA) and that states cannot impose food labeling requirements that are not identical to those in the federal act.

Food companies have included labels listing grams of fiber—along with fat, sodium, sugars and other ingredients—on food packaging for more than 20 years. The NLEA, a 1990 amendment to the Food, Drug and Cosmetic Act, requires such disclosure. The Food and Drug Administration (FDA) establishes regulations.

The Food, Drug and Cosmetic Act does not permit a private right of action, which is presumably why Carolyn Turek, who was upset about what she alleged was deceptive labeling of Fiber Plus and other chewy bar products, filed suit against General Mills Inc. and Kellogg Co. under the Illinois Consumer Fraud and Deceptive Business Practices Act and another state law.

Turek had concerns about a source of dietary fiber listed in the product labels. She claimed the companies failed to specify that the principal fiber used in the products was not “natural” but rather was inulin extracted from chicory root and that it was misleading to call it fiber. Turek also claimed that inulin does not have the health benefits of natural fiber and can cause health problems for some people.     

The defense claimed federal preemption of the plaintiff’s state law claims arising from the labeling requirements of the NLEA.  

Posner’s Position

In an October 2011 decision written by Judge Richard Posner, a 7th Circuit three-judge panel unanimously dismissed Turek’s case on the merits with prejudice.   

The 7th Circuit held in Turek v. General Mills, Inc. and Kellogg Co. that the NLEA prohibits states or their political subdivisions from imposing any requirements that are not “identical” to its requirements.

Even if the plaintiff was accurate in stating that inulin produces fewer health benefits than “natural” fiber, the manufacturer is not required to disclose that the fiber includes inulin or the alleged health implications of that, Posner added, because the NLEA requires only that the label “state the amount of dietary fiber contained in each serving size or other unit of measure.”

The court also found the defendants compliant with other federal regulations relating to health claims for dietary fiber. Ani Gulati, assistant GC and litigation chief at Minneapolis-based General Mills, said in a statement that the company was pleased with the court’s decision and declined further comment. Kellogg and its outside counsel declined comment.

Preemption Precedent

According to David Biderman, a partner at Perkins Coie, which represented General Mills, this is the first appellate court decision addressing the preemption language in the NLEA.

“Judge Posner makes stunningly clear that the NLEA preemption language is very broad,” Biderman says. “No state can impose any nutritional labeling requirement that is not identical to the federal standards. Even something consistent with the federal standards is not allowed—the state requirement must be identical. I could not have said it better than Judge Posner. He took a seemingly complicated issue and put it in simple, clear terms with concrete examples.”

The 7th Circuit also held that a state may impose labeling requirements that are identical to those found in the NLEA in order to create a state cause of action to enforce the requirements, while forbidding states from imposing any non- identical labeling requirements, says Keller and Heckman Partner Mel Drozen.

An exception is that a state can ask the FDA for an exemption from labeling “identicalness” for a requirement “designed to address a particular need,” Posner wrote.

No allegation was made in Turek that Illinois had ever sought or obtained an exemption from the federal law to impose any stricter standard. Drozen says he is unaware of any state that has been granted an exemption. But there are separate provisions for maple syrup products written into the NLEA, which he calls “the Vermont exception.”

Judge Posner said there is a clear consumer benefit to having only one national labeling standard.

“It is easy to see why Congress would not want to allow states to impose disclosure requirements of their own on packaged food products, most of which are sold nationwide,” he wrote. “Manufacturers might have to print 50 different labels, driving consumers who buy food products in more than one state crazy.”

Biderman agrees that the decision is consistent with Congressional intent.

“When it enacted the NLEA more than 20 years ago, Congress wanted to assure that consumers would receive consistent and uniform information about food ingredients to allow them to make informed choices about health and nutrition,” he says. “This decision is wholly consistent with that goal.”