Yesterday, a federal court in Arkansas issued an opinion that misinterprets federal food labeling law, preemption law, and the use of logic. The case is Craig v. Twinings North America, Inc. Download Opinion Craig v. Twinings Doc 29.
Twinings claimed that its tea was a “natural source” of antioxidants. The plaintiff alleged (but I have not confirmed) that there were not enough antioxidants in the tea to qualify for a “source” claim under the FDCA (the product must have at least 10% of the daily value or RDI).
The court went through intellectual backflips to find preemption.
The court decided that “natural source” was not a source claim at all, rejecting an FDA opinion that “finest source” was a source claim. The court reasoned that “finest” implied an amount but “natural” did not. This misses the boat, for a few reasons. First, the word “source” is there either way. And if the antioxidants were in the tea so minimally as not to meet the very minimal 10% requirement, the claim is deceptive anyway. Second, a source is a source (of course, of course). Third, how in the world does “finest” imply amount? If the FDA letter had been about a “mostest source,” that logic might have had legs.
Regardless, that’s what the court decided to decide, from which it then decided that Twinings had not violated federal law and, completely casting aside the limited NLEA express preemption rules, the court then held that allowing Arkansas law to stop a practice that wasn’t barred by federal law would conflict with the FDCA.
That killed the case, but the court went on to discuss Arkansas UDAP law. Plaintiff pleaded both that she would not have bought the tea at all if she’d known the truth, and that Twinings charged a price premium.
The court held that neither established damages under Arkansas law because the Plaintiff “paid for tea and received tea.”
I don’t know Arkansas UDAP law, so I don’t know if the court correctly summarized it (extrapolating from its interpretation of federal law, the odds are against that), but many states do use this logic. It’s completely incorrect in every way—economically and behaviorally. If consumers were only shopping for a generic product, then all products would be generic. Marketing is all about selling the sizzle as well as the steak. Nonetheless, this is the law in some states.
Another reason California courts get it right. As the California Supreme Court held in the Kwikset case (where a company sold a lock claiming it was “Made in the USA,” but it wasn’t), there are many factors that go into a purchasing decision.
Consumers should be able to rely on the sizzle and not just the steak.
In Arkansas, consumers will only get the steak, if that.
