Where is the maple syrup?

A number of similar class action lawsuits have been filed this year, all involving allegations that a food product lacks maple syrup despite representations and depictions insisting otherwise. E.g., Eisenlord v. The Quaker Oats Co., et al., No. 2:16-cv-01442 (C.D. Cal. Mar. 1, 2016); Vancleave v. Hostess Brands, LLC, No. 3:16-cv-02779 (N.D. Cal. May 23, 2016); Stiles v. Trader Joe’s Company, et al., No. 2:16-cv-04318 (C.D. Cal. June 16, 2016).

The actions were filed after the Vermont Maple Sugar Markers’ Association (VMSMA) wrote to the FDA, requesting that the FDA take enforcement action against companies “incorrectly indicat[ing] the presence of maple syrup,” in violation of the Federal Food, Drug and Cosmetic Act (FDCA) and corresponding regulations.  “This misbranded group of products declares “maple” on their packaging as a characterizing ingredient even where maple syrup (as defined in 21 CFR § 168.140(a)) is not actually present in the product,” noted the VMSMA.

While the FDA is yet to take any formal action following the VMSMA letter, a number of consumers and class action attorneys have stepped up to enforce the VMSMA’s request via private class action lawsuits.  For example, the plaintiff in the Quaker Oats action referenced above filed his complaint, alleging that defendant’s “Maple & Brown Sugar Instant Oatmeal” product did not contain actual maple syrup or maple sugar despite displaying the words “maple sugar” and a pitcher of maple syrup on each package.

Although the merits of these cases have, for the most part, yet to be assessed by a court or jury, the claims asserted appear to ride on a unique anti-preemption loophole promulgated by the FDA for maple syrup. 21 C.F.R. § 101.22 permits companies to represent that a product contains a certain flavor (e.g. strawberry) without requiring presence of that actual ingredient in the product.  Therefore, as long as a product complies with the nuances of this regulation, it can be marketed and sold with little risk of litigation, as consumer claims resting on deception would be preempted pursuant to 21 U.S.C. § 343-1.  However, products representing to contain maple syrup remain vulnerable to attack as the preemption statute seems to carve out an exception for maple syrup.

As case law develops in this niche area of practice, it will be interesting to see whether the success of these cases will be a function of law or a function of fact.  Is maple syrup exempt from preemption?  Would a reasonable consumer believe that “maple brown sugar” cereal contains actual maple syrup?  Only time will tell.

Disclaimer:  The foregoing in no way constitutes legal advice from any attorney or from Faruqi & Faruqi, LLP. The opinions expressed herein are the opinions of attorney Ben Heikali and in no way reflect the opinions of Faruqi & Faruqi, LLP.