An Agency "Warning Letter" Does Not a Lawsuit Make: Sometimes a "Warning Letter" Is Really Just a Warning


Unfortunately, the number of consumer class action complaints brought against consumer product manufacturers under state consumer protection and/or false advertising law statutes continues to rise. This increase can be traced in part to some plaintiffs' counsel's ingenious efforts to build entire cases around purported violations found in Food and Drug Administration (FDA) or Federal Trade Commission (FTC) press releases, warning letters and complaints. To these attorneys, warning letters and press releases equal liability. Period. End of story.

Thus, after plaintiffs' counsel finds a potential violation and a willing plaintiff, he or she files suit alleging one of two things: (1) that the defendant made a label claim without having adequately tested the product or substantiated the claim (commonly called "prior substantiation"); or (2) that the plaintiff "in deciding to purchase the product relied on [insert 'whatever the agency contended was wrong with the product'] and thus, the defendant misrepresented the product's benefits." Plaintiffs in those cases typically construe the agencies' notice as containing legal conclusions and findings sufficient to state a claim for false advertising or misrepresentation and fail to allege additional facts or have independent verification of their allegations.

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