You are no doubt asking yourself (and rightly so) what a private surgeon general class action is. We’ve all heard about surgeon general warnings on tobacco and alcohol products. But now manufacturers and retailers of consumer products have a different surgeon general to worry about. Not the real surgeon general who is appointed by the President, but the droves of private citizens and plaintiffs’ counsel acting like surgeons general who are filing consumer class action complaints seeking to force manufacturers and retailers of food, consumer and household products to post surgeon general-like warnings, change package labels and advertising and refund hundreds of millions of dollars to unharmed and otherwise perfectly happy consumers who purchased healthful and untainted products. These cases are easy to spot because they focus on purportedly dangerous or unhealthy ingredients in products, and, just like the surgeon general, seek warning labels or changes in product labeling and packaging.
Private surgeons general have no doubt been emboldened by the increased reluctance of courts to dismiss these cases at the pleading stage. But there are distinct trends in the defenses available to manufacturers and retailers defending against these suits. That’s where we come in. We will identify and comment on these trends (albeit unabashedly from a defense perspective).