In Arkansas, a putative class action has been filed by consumers who allege violations of consumer protection laws of four states because they purchased Tyson chicken products with packaging labeled, “Raised Without Antibiotics.” The plaintiffs claim that the packaging was “deceptive,” and they were “de-frauded” because the feed consumed by the chickens contained Ionophores, which is classified by the FDA as an antibiotic.

The putative class action follows a Lanham act case filed by Tyson’s competitors in the U. S. District Court, District of Maryland. The product labeling was approved by the USDA under its authority from the Poultry Products Inspection Act (“PPIA”), 21 U.S.C. § 451. Despite approval from the USDA, the court ruled that the competitor’s claims could proceed and enjoined Tyson from future use of such labeling. The court reasoned that the USDA regulates labeling, not advertising. Deciding that the labeling was also advertising, the court held the labeling was fair game for a Lanham act suit.

Effectively, the court opened the floodgates for class action litigation for labeling approved by the USDA. The decision is significant. It promises to energize the growing movement of consumer labeling class action work. The decision may also have a destabilizing effect on producers that rely on FDA and USDA rulings and regulations. Already, producers of organic milk face challenges under state consumer protection acts for alleged product mislabeling of milk as organic, despite organic certification approved by the USDA.

One of two things will happen: (1) full-time product-labeling litigation work for lawyers or (2) legislation by the U.S. Congress enabling federal preemption. The latter is obviously the more sane course. Nothing is more inefficient than regulation of product labeling through state consumer class action claims. Expert regulatory agencies such as the FDA and the USDA, not judges and juries, should decide what constitutes appropriate labeling and advertising of food products.