If you are a regular reader of this blog, and we hope you are, you know that we have been paying close attention to when the FDA will issue its guidance on internet and social media promotion of drugs and devices.  You can find our latest update here.  As we’ve said before, we, and more importantly our clients, want and need word from the FDA as to what it will consider proper and what it will not.  We know the rules for print and broadcast promotion, but those media continue to lose readers/viewers to the internet, and in particular to social media.  And, in that marketplace – there remain too many unanswered questions for our clients to have any comfort in using the internet as a means of communicating information about their products.

The single biggest question for which we don’t have an answer is what actually constitutes promotion.  Is it providing a link to a scientific article?  Is it “liking” a Facebook post?  Or “re-tweeting” someone else’s comments?  We just don’t know.  So, while we sit and wait for the FDA to decide the answer, we thought we’d bring you a recent decision from a food labeling case that grappled with the internet issue.  The rules about food labeling are different from those for drugs and devices, but in the absence of formal FDA guidance, it behooves us to be aware of what courts are saying about our cousins in the food industry.

We doubt you’ll be surprised to learn that the issue arose in the context of a putative class action brought in California alleging violations of California’s Unfair Competition Law’s (“UCL”), False Advertising Law (“FAL”), and Consumers Legal Remedies Act (“CLRA”); as well as unjust enrichment and breach of warranty.  Wilson v. Frito-Lay North America, Inc., 2013 U.S. Dist. LEXIS 47126, at *4-5 (N.D. Cal. Apr. 1, 2013).  Perhaps you’ll be slightly more surprised, as we were, that anyone was claiming they were misled about the nutritional content and value of such products as “Lay’s Classic Potato Chips, Lay’s Honey Barbeque Potato Chips, Lay’s Kettle Cooked Mesquite BBQ Potato Chips, Cheetos Puffs, and Fritos Original Corn Chips.”  Id. at *2.  Can anyone claim — with a straight face – that they both purchased these products and that “they care about the nutritional content of food and seek to maintain a healthy diet”?  This is the food of juvenile ignorance, youthful metabolism, and the occasional late night, perhaps alcohol-influenced, binge.  It’s called junk food for a reason!  But, back to the case.

There is a lot going on this decision, including a finding that several of plaintiffs’ claims are not preempted because the requirements they seek to impose mirror those imposed by the FDA – in drug and device parlance, they are allowable parallel violation claims.  Not a result we’d champion and since we blogged about a similar result last week in Brazil v. Dole Food Company, 2013 WL 1209955 (C.D. Cal. Mar. 25, 2013), we won’t re-hash the issue here.  See Wilson, 2013 U.S. Dist. LEXIS 47126 at *19-29.  There is also an interesting discussion of the deference to be afforded to an agency’s informal, non-binding interpretation of its own regulations.  In this case, the court found that because the regulation in question (on MSG labeling) was subject to different possible interpretations, it would give deference to the FDA’s statement on its website which “appears to be its own interpretation of an ambiguous regulatory scheme.”  Id. at *26-29.  Again, not a ground breaking ruling, but noteworthy.Continue Reading Website Not Considered Labeling in Food Case