No Cranberries for Thanksgiving: The Impact of FDA Adverse Publicity

Abstract

As the primary federal agency responsible for regulating the safety of food, drugs, medical devices, and cosmetics, The Food and Drug Administration (“FDAâ€) has enormous responsibility. With this responsibility comes power. Through its various enforcement mechanisms, the FDA seeks to protect the health and welfare of Americans. One mechanism the FDA employs involves the use of publicity to warn the public about potentially hazardous products. This adverse publicity , regardless of the accuracy of the information contained therein, can have a disastrous impact on the target of the publicity. At times, it has resulted in significant business losses or even cessation of the business’ operations. Parties harmed by this adverse publicity have turned to the courts, largely unsuccessfully, to recover damages from loss profits and/or to enjoin the FDA from disseminating adverse publicity regarding their products. Courts generally have failed to rule in favor of these plaintiffs. This paper discusses these cases. It begins with a brief overview of the agency’s publicity practice, including the statutory basis, the means through which the agency disseminates this information, and the benefits and disadvantages of the practices. Next, the paper analyzes the case law involving plaintiffs who brought action against the FDA because of adverse publicity, starting with those in which plaintiff have been unsuccessful and then concluding with those in which they have not. This paper concludes with recommendations for ways to balance the needs of the public to be alerted to potential health hazards with the needs of the companies affected by the publicity.