Unfair or Deceptive Trade Practice and Consumer Protection Litigation

Manufacturers, distributors, and retailers of regulated products are not only subject to regulations promulgated by agencies with jurisdiction over the type of product, e.g., FDA, USDA, and EPA, and their state equivalents. They are also subject to myriad statutes designed to protect the consumer and competitors from unfair, deceptive, and fraudulent practices in the marketing and sale of those products.
These statutes vary across the states, but generally include a private right of action for customers and competitors. The breadth of that right is much broader in some states. The states also vary with respect to the available penalties and damages and the types of violations that customers and competitors can sue for.
Those in the food industry are particularly likely to receive demand letters alleging violation of a deceptive trade practice and purporting to bring a class action. Often such letters allege that the product is marketed or labeled in a way that deceives the purchaser. They may allege an affirmative misrepresentation (e.g., that product marketing states the product is “all-natural” or “Made in the USA” when it is not) or a material omission (e.g., the presence of a heavy metal in food products). They also may claim that the shape and size of the product is misleading, as in the slack-fill cases, that allege that size of the container misleads the purchaser regarding the amount of product.
We have resolved numerous claims alleging misleading labeling and marketing of food and over-the-counter medications. Our expertise in regulatory requirements, including labeling, provides an edge in such litigation. We are particularly successful in resolving these cases prior to suit, often without any settlement payment or injunctive relief.