When Food Goes to Court: Food Litigation Cases
By RDBA Executive Director Annette Maggi, MS, RDN, LD, FAND
An interesting nuance of food regulations and policies overseen by the Food and Drug Administration (FDA) is that the agency does not directly police compliances with the rules. To this end, court cases, including class action lawsuits, are filed against consumer packaged goods (CPG) companies. As retail dietitians are in constant contact with consumers, managing a wide variety of topics and discussions, understanding the focus of this litigation can be helpful. Additionally, the decisions made in these cases have impact on private label businesses.
According to Perkins Coie’s Food Litigation practice, there were 220 food litigation cases filed against food companies in 2020, the highest in the past decade. The primary categories of recent food litigation, as discussed in a recent webinar hosted by the legal department at FMI, the Food Industry Association are as follows:
- Flavors and other ingredients. Interestingly, a significant number of lawsuits are related to vanilla, with companies using the label to suggest there is more present than actually is in the product or that the vanilla used is of a higher quality.
- Region of Origin. Champagne is a classic case of regional naming as it must come from this France location to bear the name. The biggest offenders in this category, misleading consumers to believe a food is from a specific location, are beer, chocolate, and tortillas. Kona Beer, for example, used imagery in addition to the name (Kona is a town in Hawaii) to suggest the beer was made in Hawaii, when in fact it is not.
- Health and Wellness. Immunity claims and statements related to immune support are currently being challenged in court. To a lesser degree, whole grains, electrolytes, and vitamins are being misrepresented on packaging, leading to lawsuits. The most common food categories for these cases are cereal, bars, fruit juice, beverages, and coconut milk. Information on class action lawsuits can be a powerful tool for retail RDs trying to educate marketing departments on why these claims cannot be used in promotion of foods.
- Sugar-related Claims. The distinction being made in the results of these lawsuits is the difference between messages intending to suggest sweetness as a taste vs. a claim about the sugar content as related to nutrition. “Sorta sweet” has been determined to represent flavor where as “lightly sweetened” is considered a sugar nutrition claim.
- Protein Claims. This issue is primarily related to plant-based foods and their protein declarations. The FDA food regulations indicate that listing of a protein Daily Value is optional on package, but if you do list it, you must use the Protein Digestibility Corrected Amino Acid Score (PDCAAS) to determine the protein amount and precent Daily Value, which requires lab testing. There is a current case against a high protein product from Kodiak Cakes related to this issue.
- Website Claims. Historically, the FDA and partner agency the Federal Trade Commission (which oversees advertising) did not give much consideration to messages CPG companies’ websites, believing that the average shopper wouldn’t read information on a website and then consider it when in store making food purchase decisions. With the recent and significant increases in online grocery shopping, website messages are under greater scrutiny. This includes product descriptions, tags, and category directional messaging. Retail RDs can partner with their e-commerce teams to ensure a regulatory review of selling sites and pages is included in processes.