United States: What Is A Lie? How To Decide? Who Decides?

Last Updated: September 7 2018
Article by Stephen J. McConnell

Recently Rudy Giuliani was broiled for saying that the truth isn't the truth. Denying a tautology won't typically earn one high marks for logic. Add in the callback to Pontius Pilate's "What is truth" question, and it sounds like bad epistemology in service of bad morality. But we're not here to talk politics. Nor are we here to try to answer Pilate's question. Maybe the Drug and Device Law Daughter, who is just starting her second year at Harvard Divinity School, can field such questions. We cannot.

As a former prosecutor of mail frauds and wire frauds and as a current defender of companies accused of consumer fraud, the question we have faced is usually more along the lines of "what is a lie." It is not merely the opposite side of the street, though it surely is in the same neighborhood. Liars are everywhere. They overstate their income when applying for a loan. They understate their income when reporting to the IRS. They use sucker lists to lure retirees into investing in nonexistent oil wells. They loot companies via creative accounting. They tell us our table will be ready in "just a few minutes." They tell us our flight is "On Time." They check the box saying they have read and they accept the terms and conditions. They pretend not to want the last slice of pizza.

What makes something a lie that leads to liability? Even putting aside the difficult issue of discerning a defendant's intention to prevaricate, how does the law tackle claims that someone did wrong by uttering something at odds with the truth? The police are not the truth police, and civic dockets could not bear the strain if every lie led to a lawsuit. So the law has introduced concepts of materiality and detrimental reliance. A lie is actionable only if it made a difference. It had to have fooled someone who is not a fool. It had to have caused harm.

One summer, between our junior and senior years in college, we worked in the New Jersey legislature. It was the summer of the FBI's Abscam investigation (see American Hustle). A couple of politicians, including a U.S. Senator, six members of the House of Representatives, a New Jersey State Senator, and the Mayor of Camden, did perp walks on their way to corruption convictions. But the legislators and staffers we worked with were a competent and honorable group. One of them focused on consumer fraud matters. He told us that anytime a state investigator wanted to ring up some citations, all that was required was a visit to a nearby supermarket. Weigh some packaged meat, compare to the stated weight, and – voila! – there would almost certainly be a discrepancy. Evaporation and the passage of time produced a lie. Thankfully, a rule of reason prevailed. Nobody was really deceived or hurt. Let's be grownups about this. There are plenty of real frauds to pursue. It wasn't cynicism; it was realism, aided by a set of reasonable priorities.

Years later, we found ourselves in Southern California. It's hard to say why it's so, but it quickly became clear to us that folks on the west coast were a lot less tolerant of puffery or even the slightest deviation from their idea of truth and purity. Is it a state of innocence? Does life under perpetually sunny skies foster a heightened sense of entitlement? Look at the lawsuits alleging that a company incorrectly called its product organic or natural. They are not all filed in California, but it seems that most of them are. Even so, most of those lawsuits don't get much traction in the courts, because a regulatory agency had made a determination of what could and could not be put on a product label. In such cases, courts don't need to engage in science, or semantics, or epistemology. It turns out that sometimes Pontius Pilate's question is preempted.

Today's case originated in Southern California: Welk v. Nutraceutical Corp., 2018 U.S. Dist. LEXIS 135595, 2018 WL 3818033 (S.D. Cal. Aug. 10, 2018). The plaintiff had purchased liquid vitamin B12 and complained that the packaging overstated its contents. The claim centered on test results from a "reputable supplement analysis center located in California" showing that, once opened, the liquid vitamin B12 "undergoes degradation at an unknown rate." After only 11 days, a sample of the product weakened from 255 ug/ml to 213 ug/ml. The plaintiff contended that the amount of B12 eventually "becomes negligible and ineffective." Thus, the bottle's label was "untrue, false, and misleading." The complaint included various actions for misrepresentation, and did so on behalf of a purported class of consumers.

Tell the truth: this claim does not exist unless it is a class action, right? And what does that tell you?

Stepping back for a moment, doesn't this claim remind you of the statement on cereal boxes about how the contents may have settled? When you are a child, this statement might possibly have arrived as unpleasant news. Open a box of Cap'n Crunch, and one is greeted by almost as much air as nuggets of cavity-inducing goodness. But as adults, we read this statement with calm resignation. Perhaps that is because we, too, our bodies and our minds, have settled over time.

The defendant in Welk moved to dismiss the claim for various reasons. The best of those reasons was that the claim was preempted by the Food, Drug, and Cosmetic Act, as amended by the Nutrition Labeling and Education Act. There is an express preemption provision barring state law food labeling requirements that are "Not identical" to federal regulations. The FDA regulates the labeling of the "quantitative amount" of nutrient supplements such as vitamin B12, and decrees application of a specific testing methodology. The defendant's labeling complied with the FDA's labeling and testing methodology.

How does the plaintiff endeavor to evade preemption? The plaintiff argued that the defendant improperly failed to disclose the fact of degradation. But that assertion of degradation rests upon a testing methodology that is certainly not "identical" to the one mandated by the FDA. Accordingly, the court, in a very short, very to-the-point decision, held that the plaintiff's misrepresentation claims were preempted and must be dismissed. Was the vitamin label a lie? Not really. As with many of the cases we encounter, the alleged lie was one of omission. Tell me more, says the plaintiff. One can always think of more. How to decide? There's a scientific test. Who decides? The FDA.

We cannot count ourselves surprised by the result in Welk. It is consistent with several others we have seen in food and nutraceautical cases. But we do count ourselves as envious. Most of our cases involve drugs and medical devices. (No surprise there; take a look at the title of this blog. Please don't accuse us of false advertising because today's case involves neither a drug or device. We're about to tie it together, okay? Okay. Here goes.). The preemption language for medical devices is there, but it's been unduly watered down by a couple of courts. The logic for preemption of drug labeling is there, but it, too, was overly cabined in some regrettable judicial decisions that are starting to collapse from their contradictions. (Many of those decisions indulged in a presumption against preemption – a presumption that has since been discredited.) Imagine if food preemption rules applied to all the products regulated by the FDA. Think of the logic, consistency, clarity, and efficiency. We could use a little more of that in the DDL world.

That is no lie.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions