Food manufacturers should be aware that private litigants may also enforce Act 120 (as it is codified in a part of the Vermont code that has a private right of action), and would likely exercise less restraint than the state AG in the first few months, predicted Hahn.
“There is a bounty hunter provision that allows individuals in the state of Vermont, lawyers for example… to enforce the law. We are concerned that bounty hunters will take action as soon as Act 120 goes into effect.
“Private individuals are not entitled to recover $1,000 per day per SKU [the amount the state is entitled to claim for non-compliant products under Act 120] but they are entitled to receive at least three times the [ticket price of the] product they purchase and retrieve their attorney’s fees, which could amount to a significant amount of money.
“We’ve also not been able to ascertain whether you could put together a class action and lawyers could argue that any consumer from Vermont who purchased your product from July 1 and found it was not properly labeled, should be entitled to compensation, so we’re talking about [potential awards amounting to] dollar sales of your product across the state of Vermont times three, and all the legal fees. And at a minimum, legal fees for one of these actions would likely be $250,000 to $1m.”