Websites as Labeling for Foods Redux

By Ricardo Carvajal –

We previously reported on a case – Wilson v. Frito-Lay North America, Inc. – in which a federal district court held that statements on a food company’s website do not constitute labeling even though the labels of some products include a reference to the website.  Plaintiffs were given leave to amend, and did so – but were rebuffed again in an October 24, 2013 decision from the U.S. District Court for the Northern District of California. 

In their amended complaint, Plaintiffs alleged that Defendant’s website contains numerous statements that explain and supplement other statements about the products, and pointed to FDA warning letters in which the agency took the position that the websites at issue in those cases constituted labeling. 

The court pointed to FDA guidance stating that a website is likely to constitute labeling when the product contains a statement that refers the consumer to a website “for additional information for a claim for the product.”  In such cases, the website “supplements or explains the product and is designed for use in the distribution and sale of the product” (see here).  The court then concluded that the FDA warning letters cited by plaintiff are irrelevant:

Those letters do not address how the FDA regulations are to apply.  Instead they discuss specific websites that the FDA had independently concluded constituted labeling. The FDA has made no such specific conclusions about Defendant's Products in this case…

The court held that the products’ reference to defendant’s website address does not constitute labeling under the FDC Act because it appears below Defendant’s physical address and “not near the ingredients list or any nutritional facts.”  Further, the label does not direct consumers to the website “for more facts about the labeled product.”  The court dismissed Plaintiff’s claims about the website with prejudice.