Media outlets are abuzz with ‘news’ that some brands of parmesan cheese, like many other foods, contain cellulose—a common plant derivative with uses ranging from adding fiber to food to preventing clumping.
And because wood pulp (also technically a plant derivative) contains cellulose, these outlets have concluded, or at least drawn readers in with headlines, claiming parmesan with cellulose contains wood pulp.
That isn’t a fair conclusion, but it makes for catchy headlines—and, unfortunately, food for a new wave of food mislabeling class actions, as Kraft and Walmart recently discovered in lawsuits filed against them.
So what’s really going on?
Cellulose in food is nothing new. In fact, it is a common food additive with a wide variety of uses, and an important and often-indispensable ingredient with uses ranging from supplementing fiber content to serving as an anti-clumping agent. Under FDA regulations (21 CFR 182.1480), cellulose is also generally recognized as safe (GRAS) — meaning that nutritional experts consider it safe. And, it’s not the same as wood pulp.
The FDA defines Parmesan as well, and strictly regulates it while allowing many ingredients beyond just milk and salt. The broad regulation of Parmesan (found at 21 CFR 133.165) states, among other things, that it:
- Is “prepared from milk and other ingredients;”
- Contains rennet, “or other safe and suitable milk-clotting enzymes;”
- May be made “with or without calcium chloride;”
- May add artificial color;
- May contain milk that is “bleached by the use of” various chemicals, including benzoyl peroxide (which is also used for treating acne, although not orally); and,
- Includes any food with the “same physical and chemical properties” as those defined in the regulation.
Cellulose and the other ingredients used in American Parmesan are considered GRAS
The FDA’s parameters for Parmesan cheese may not make for catchy headlines, and they are broader than European requirements for the more famous (and more expensive) Parmesano-Reggiano (limited to milk, salt, and rennet). But they do get at the gist of these stories: is Parmesan safe to sprinkle on your penne? Yes, as long as it complies with these FDA parameters—a key point that neither these articles nor the cheesy class actions focus on.
The FDA has an obligation to ensure food is not only safe, but also marketable and widely available. Its duty is to regulate safety, taste, purity, price, and preservation. Cellulose and the other ingredients used in American Parmesan are considered GRAS, which makes them safe, inexpensive and eligible for sale and manufacture.
Violations are the responsibility of the FDA, not consumer lawyers trolling the news for a quick payout
And when the food is not safe, the FDA—not courts—enforces those regulations. Take Castle Cheese Inc., noted in the Bloomberg article, which faced prosecution by the FDA over its 100% grated Parmesan Cheese. The FDA discovered Castle’s Parmesan cheese failed to comply with the regulatory definition and barred further sale.
There, the FDA, under its exclusive authority to enforce its regulations, reportedly filed criminal charges.
But it wasn’t a class action that led to FDA enforcement, and that’s the right result, because these violations are the responsibility of the FDA and not consumer lawyers trolling the news for a quick payout.
As the federal agency charged with protecting the food supply, the FDA has the science, resources, and knowledge to understand the often-complicated interplay between food safety, cost, and public health. The FDA responds to facts and science, not fads and tacky headlines.
Parmesan lawsuits should be dismissed on preemption and primary jurisdiction grounds
So what does this mean for these lawsuits? Setting aside that the label itself probably isn’t misleading in the eyes of the FDA (the label claims that the product is “100% grated,” not 100% Parmesan,” anyway), they should end early.
For food distributors facing the inevitable spate of new fad food class actions, it should mean dismissal on preemption and primary jurisdiction grounds, as it does for many (though not all) the trans fat, natural, and sweetener class actions.
In general, when dealing with lawsuits within the realm of a federal regulatory agency, federal courts dismiss or stay the lawsuits to allow the agency to do its job without court interference. Many (though not all) the fad class actions face this fate because of controlling regulations, and so should these cheesy additions. Such an outcome protects companies who have properly, and in good faith, complied with agency regulations, as most do.
Pulp fiction
This does not leave consumers without recourse. Rather than feed the class action frenzy, consumers with concerns about the use of cellulose or other ingredients should direct them to the FDA, which is required by law to provide a mechanism for addressing public concerns with agency regulations. When the FDA sees an actual violation, it acts—as it did with Castle Cheese, Inc.
The bottom line: the recent spate of lawsuits complaining of consumer deception contains a more than healthy amount of pulp fiction.
TroyGould attorney Jacob M. Harper has handled myriad consumer class actions and is an expert in food mislabeling claims—and especially early dismissals—for clients some of the country’s largest grocers, retailers, and distributors. He is a graduate of The University of Chicago Law School and a member of TroyGould PC, in Los Angeles.