914-908-6757 anthony@vernalaw.com

Food labeling law seems as if it is an uncontroversial area of law.  However, many aspects of food law – especially the labels – are misunderstood.

Perhaps no other category of consumer products has more direct and sustained implications for consumers than “foods,” which are ingested on a daily basis across the entire lifespan and contribute to an overall diet that determines the extent to which basic metabolic needs for water, energy, and nutrients are satisfied. The safety and nutritional quality of “food” that is marketed to consumers plays a fundamental and influential role in the health and welfare of virtually all consumers on a daily basis. In view of the significant public health and consumer protection interests at stake, the scope and complexity of the body of overlapping federal and state laws and regulations governing the safety, labeling and marketing practices associated with food products may come as no surprise.
At the same time, the legal compliance and liability risk management challenges food and dietary supplement companies are facing are growing rapidly and substantially as a result of the convergence of a number of key legal and technological trends which are increasing the uncertainty and risk
associated with product marketing practices, including with respect to the information and claims that are disseminated through food labeling.
 
Here are a sampling of recent lawsuits involving food labeling issues:
  • A lawsuit against small Florida-based cookie company Lenny & Larry’s complains that consumers can’t really know if their purportedly vegan cookies are actually vegan because they’re made in a facility that also processes meat and eggs (which the label notes).
  • One complaint argues that sour cream shouldn’t be advertised as natural if it’s made with milk that comes from cows who were fed genetically-modified corn or soy
  • A lawsuit against Tito’s Handmade Vodka faults the company for advertising its vodka as made in an “old fashioned pot still.” While no one disputes that it’s made in a pot still rather than the now-more-common column still, the plaintiffs say Tito’s pot stills are too modern to qualify as “old fashioned.”
  • Fourteen lawsuits allege that bottles of McCormick & Company’s ground black pepper are slightly under-filled
  • Sixteen lawsuits fault 5-Hour Energy drinks for not providing a full five hours of energy
  • Two lawsuits allege that Starbucks’ cold beverages contain too much ice
  • A suit filed against Krispy Kreme claims the company’s raspberry-filled donuts are misleading as they don’t contain real raspberries, depriving consumers of a “rich source of Vitamin C, Vitamin K, Potassium, and dietary fiber” and nutrients that “help fight against cancer, heart and circulatory disease, and age-related decline.”
  • Nearly-identical lawsuits allege that boxes of Sour Patch Kids watermelon candy, Bit-O-Honey, various fruit snacks, Junior Mints, and waffle mixes are slightly under-filled. Filed by the same law firm, the suits sometimes forgot to swap in or out the right product names.
  • A suit against Naked Juice complaints that the company’s fruit- and vegetable juice labels mislead consumers by featuring pictures of fruits and vegetables and the statement “no sugar added” because even though the juice does not contain added sugars, its sugar content is still similar to that found in some soft drinks.

There is also enforcement from the Food and Drug Administration and the Federal Trade Commission.

Recent enforcement actions challenging food labeling claims have been brought by both FDA and FTC and have underscored the importance of considering both FDCA and FTCA requirements in the context of food labeling compliance programs. Publicity surrounding such FDA and FTC enforcement actions also have inspired a significant number of follow-on consumer class action lawsuits alleging that the same food labeling violates state consumer protection laws.

During the period since January 2009, FDA enforcement policies have emphasized the importance of food labeling compliance to the advancement of the agency’s public health objectives. In a food labeling enforcement initiative executed in 2010, FDA issued no less than 17 warning letters on a single day which challenged food labeling claims, including a notable number of “front-of-pack” label claims and marketing claims disseminated through internet websites which FDA determined to qualify as food “labeling.”
Since January 2011, FDA has issued numerous warning letters to food manufacturers alleging that food and dietary supplement product labeling violated FDCA section 403 requirements, including requirements governing mandatory label statements (e.g., statement of identity, ingredient labeling, and allergen declaration), and those governing the conditions of use for nutrient content claims (e.g., antioxidant claims) and health claims.
In a few cases, FDA has challenged “natural” claims for food products containing citric acid or other ingredient the agency regards to be synthetic.
In a number of cases, FDA warning letters have alleged that the labeling claims for food or dietary supplement products not only cause the product to be misbranded food, but simultaneously render the product an unlawful new drug.
Navigating the increasingly complex and dynamic sphere of food and supplement labeling requires companies to ensure that its compliance policies and procedures are well-defined and account for the full range of legal requirements and risk management considerations that arise under the FDCA, FTCA,

and related federal and state laws. Given the rise in consumer actions, however, the inquiry can not end here. Compliance policies should also adopt a risk-based approach to analyze whether a particular

labeling claim may be ripe for consumer action.  While complete certainty may not be attainable
in today’s rapidly changing legal climate, industry would be remiss to assume that compliance with FDA and FTC regulations was sufficient in itself as a matter of food labeling policy.
Do you have questions about the food products that your business sells?  Don’t hesitate to contact Verna Law, P.C. – anthony@vernalaw.com or 914-908-6757.