We recently read an editorial in The New York Times advocating lawsuits as a means of regulating an industry. Politicians are gripped by paralysis – so the argument goes – thus we must entrust the issue to litigators, smart judges, and good-hearted jurors. After all, hadn’t years of product liability litigation resulted in safer products?
Well, … no. Data doesn’t show that litigation leads to safer products. Fewer products, probably. More expensive products, definitely. But litigation is a perfectly awful way to impose safety regulations on an industry. Say what you will about politicians, but at least they are somewhat representative of people’s will. Say what you will about regulators, but at least they possess some expertise. If there is paralysis in the halls of a legislature or government agency, that paralysis reflects a lack of consensus, a clash of passions, or a genuine conflict in the science. Litigation is an eccentric means of ruling on general issues – it is off-center. The peculiarities of one lawyer’s eloquence, or one judge’s bent for social engineering or twelve jurors’ emotions can produce a verdict with profoundly puzzling and profoundly enormous implications. It is a rotten way to lay out general safety rules. (Mind you, we are not talking about constitutional issues that may require judicial intervention.) The various say-sos of jurors or even judges can be unpredictable, unbalanced, and inconsistent. Lawsuits are not designed to determine safety science or policy. Instead, they resolve disputes between parties.
Enter the judicial doctrine of standing. You cannot pursue a lawsuit merely because you are sure you have the right idea of How It’s Got to Be. Rather, you must be actually injured in fact. Injured sensibilities are not enough. Not every Nosy Nellie qualifies as a plaintiff. The doctrine of standing means that lawsuits pertain to actual disputes. Courtrooms are not debating societies. If there are judges anywhere in the land, say, in Brooklyn or Boston or Los Angeles or anywhere else who think they have a great idea about how to regulate consumer products, great; write a letter or comment to a legislator or regulator, but don’t glom onto a lawsuit as a way of playing the role of Philosopher King. Maybe the judiciary is not always the “least dangerous branch,” but limiting doctrines such as standing are intended to make it so.
Standing is the key issue in today’s case, Debernardis v. IQ Formulations, LLC, 2018 U.S. Dist. LEXIS 52445 (S.D. Fla. March 29, 2018). Debernardis was a purported class action alleging that certain dietary supplements contained a stimulant that was unlawful and, therefore, rendered the supplements “adulterated” or “misbranded.” The plaintiffs parsed the FDCA regulations to justify this allegation. While the FDCA does not provide for a private right of action, there are a number of state consumer protection laws that incorporate FDCA labelling provisions and provide a mechanism for private suits. Accordingly, the plaintiffs in Debernardis contended that the makers of the supplements had violated Florida, Illinois, and New York deceptive practices acts and other laws. The plaintiffs alleged that they suffered economic injury because they would not have purchased the supplements had they known that one of its ingredients had not been approved by the FDA. Importantly, the plaintiffs did not allege that they had suffered any physical harm or that the supplements did not work as advertised.