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From television commercials and magazine ads to labels and packaging, food and beverage manufacturers spend a significant amount of money advertising their products.  Congress passed the Food, Drug, and Cosmetic Act (FDCA) to ensure that food and beverage manufacturers do not mislead or deceive consumers with their advertising.  The FDCA’s purpose is to protect consumers from adulterated and misbranded food and beverages.  The FDCA prohibited misbranding food and beverages using false or misleading labels to further this goal.

This Note begins with an outline of the history of federal food regulation in the United States.  It discusses the FDCA’s origin and purpose and its subsequent amendment, the NLEA.  This Note will then discuss the NLEA’s preemption provision and its interplay with private litigation brought under state consumer protection laws.  It will also examine the FDCA’s interaction with private litigation brought under the Lanham Act.  The discussion then moves to the Supreme Court’s decision in POM Wonderful LLC v. Coca-Cola, Co.  This Note will proffer that the Court’s conclusion that the Lanham Act is a necessary complement to the FDCA reveals major gaps in the FDA’s enforcement of the FDCA.  This Note will then examine the reasons for the FDA’s sporadic enforcement of the FDCA.  Contrary to the Court’s reasoning in POM, this Note will argue the Lanham Act is not a suitable complement to resolve the FDCA enforcement issues because manufacturers do not bring these suits to advocate for consumer protection, but rather to self-serve their own commercial interests.  Accordingly, this Note will offer an alternate solution aimed at protecting consumer interests, namely, consumer-initiated suits to enforce label regulations, brought under state consumer protection laws.

Read the full Note here.