Court Squashes Anti-Milk Class Action Suit

Some of you may remember that the militant vegan group, the Physicians Committee for Responsible Medicine (PCRM), launched a truly world-class nutjob suit against dairy producers for not putting warnings against lactose intolerance on their milk. I wrote about it in Physicians Committee for Responsible Medicine Anti-Milk Campaign and PCRM Loses Nutty Anti-Milk Case in Court.

In the latter post I said:

The judge dismissed the lawsuit. PCRM issued a statement that they will appeal the ruling.

My prediction? That will get dismissed as well.

Guess what. A D.C. Circuit Court judge just did exactly that. Or so says a message from the future about the past.

OK, it's just a posting dated November 19 (for some press release sort of reason, I suppose) about last week's court decision. (Checks clock on screen. Yes, it's only November 17.)

Anyway, Howard J. Bashman supplies the summary of the case for law.com.

After the case had been removed to federal court, the U.S. District Court for the District of Columbia dismissed the lawsuit for failure to state a claim. First, the trial court ruled that the plaintiffs' tort claim under local D.C. law was pre-empted by the federal Nutrition Labeling and Education Act. And second, the trial court ruled that even if federal law did not pre-empt the plaintiffs' tort claim, no duty to warn existed because the health consequences of being lactose intolerant are well known.

In affirming the trial court's dismissal of the case, the D.C. Circuit ruling relied solely on the second of these two bases in dismissing the suit. According to the appellate court, "we hold as a matter of law that a reasonable consumer today would be well aware that milk may adversely affect some people." The appellate court concluded its rejection of the plaintiffs' tort claim under D.C. law by stating: "the risk that milk will cause temporary gas and stomach discomfort to lactose-intolerant individuals who do not yet know of their condition cannot support a failure-to-warn tort claim under D.C. tort law."

As a result, the appellate court found it unnecessary to resolve whether the pre-empting effect of the Nutrition Labeling and Education Act also required the dismissal of the suit. And the court also observed that even if the risk of drinking milk were not widely known, the fact that the alleged harm is temporary and limited might nonetheless defeat any failure to warn claim.

Judge Brett M. Kavanaugh wrote the D.C. Circuit's opinion on behalf of a unanimous three-judge panel. His opinion reveals that he is no stranger to potential food-related causes of stomach upset: "A bout of gas or indigestion does not justify a race to the courthouse. Indeed, were the rule otherwise, a variety of food manufacturers as well as stadiums, bars, restaurants, convenience stores, and hot dog stands throughout the country would be liable to millions of would-be plaintiffs every day. Plaintiffs' novel claim falls far short of what D.C. law requires."

I am entirely for the new warning labels required on ingredients lists that must state whether certain known major allergens are present in food. Allergies, and the possible anaphylaxsis that may result, are of an entirely different class of illness than lactose intolerance.

Ingredients lists should certainly exist and should obviously reflect all dairy products in them. However, few people today can possibly be unware that milk is a dairy product and may trigger lactose intolerance. The suit did not target manufacturers who add lactose to a processed food under the guise of whey. The PCRM had no motive involved other than wanting to force the dairy industry that it hates to add a potentially scary "warning" to its packaging.

This is the politics of fear, pure and simple. Although fear-mongering works all too well in today's world, information works far better. There was no reason for this suit, no public waiting to be helped. It was an attack on all people who didn't think like they did.

Before anybody starts denouncing judicial activism, BTW, Kavanaugh is a conservative judge appointed by the current President Bush and was writing for a unanimous court. Though I can't imagine what kind of ideology a judge could have to let this idiocy go forward.

It's not germane to the case, but I really like Bashman's concluding line:

Because the D.C. Circuit's ruling ... had to be finalized for publication, it is too soon to know for certain whether the nation's baked-bean manufacturers are celebrating the decision's outcome.