URBANA, Ill. — Food labels are a tricky business. Manufacturers must strike just the right balance to entice consumers without making false claims about their products. But if the number of lawsuits over misleading food labels is an indicator — 220 in 2020 alone — manufacturers are struggling. 

Court decisions provide little unifying guidance for manufacturers, with judges applying idiosyncratic reasoning to lower-court opinions. That’s why a team from the University of Illinois Urbana-Champaign analyzed hundreds of court documents and labeling laws to provide a set of guidelines courts can follow for more consistent verdicts, which could, in turn, influence food labeling practices. Their article, published in Loyola Consumer Law Review, was recently cited by the United States Court of Appeals for the Ninth Circuit in a product labeling case.

Judges often base their rulings on what a “reasonable consumer” might conclude when viewing food labels, according to study author Bryan Endres. “But one of the points we're trying to make in our paper is that judges have to think about how food is marketed to the individual consumer going up and down the aisles in the grocery store, often in a hurry. You're just going to grab stuff that jumps out at you. The reasonable consumer doesn’t sit in a judge's chamber, taking an hour to study a food label and pick it apart,” said Endres, professor in the Department of Agricultural and Consumer Economics (ACE), part of the College of Agricultural, Consumer and Environmental Sciences (ACES) at Illinois. 

That’s why Endres and his co-authors, Jessica Guarino and Nabilah Nathani, suggested courts should consider tools like consumer surveys to better represent the authentic experiences of shoppers. This is the point cited in the U.S. Court of Appeals case. 

In the case, the plaintiff argued a label using the phrase “Nature Fusion” was misleading, suggesting a reasonable consumer should expect all-natural ingredients. The plaintiff’s counsel had arranged for a consumer survey in which participants had access only to the front label, not the ingredient list on the back label: a mistake in the eyes of the judge. The survey participants found the phrase ambiguous, but not necessarily misleading, as did the judge in her decision. In her court opinion, the judge said the survey’s flaws prevented it from being informative, but argued, with a citation to the Loyola article, well-designed surveys could be relevant and helpful in other cases. 

Interestingly, the label in the case was on a shampoo product. 

“That was exciting to us because our article is talking about food, but the same principle happens in all these other consumer products,” Endres said. 

The Loyola paper provides a number of guiding principles in addition to the consumer survey recommendation. When applying the reasonable consumer lens to food label claims, the authors note, judges should consider factors such as consumers’ financial and food literacy, their personal beliefs, and the gap between manufacturers’ seemingly unlimited research resources and consumers’ limited attentional resources in real-world shopping environments.

“Absent these central elements driving consumer behavior and food purchases, reasonable consumer analyses are nothing more than a culmination of guessing,” said Guarino, a postdoctoral research associate in ACE.

According to Endres, the flurry of food label litigation has plateaued since 2020, but he still sees lawsuits popping up a few times a week. “I think for years, the food industry was not subject to a lot of attention about the label claims that were being made,” he said. “But consumers are paying more attention to labels now. And the companies know this.”

Against this backdrop, Endres says it’s more important than ever for courts to send a consistent message.

 “A U.S. Court of Appeals is just one step below the Supreme Court, so to be quoted in that opinion is significant,” Endres said. “It’s one step forward in trying to create some definitive rules around consumer labeling. There's still a lot of subjectivity involved, but I think it provides some clarity that had been missing.”

The article, “What the judge ate for breakfast: Reasonable consumer challenges in misleading food labeling claims,” is published in the Loyola Consumer Law Review. The research was supported by the Bock Agricultural Law & Policy Program, part of ACE at Illinois.