Avoiding Litigation: Beware of Product Packaging Pitfalls

Food and beverage manufacturers should also be sure to have concrete evidence supporting any marketing claims on their packaging in the event that regulators come calling. For example, if a product’s label claims that “two out of three doctors recommend including X as part of a balanced diet,” there should be clear and convincing survey data supporting the claim. While many FDA regulations apply specifically to the product’s nutrition label, the remainder of the product’s physical packaging as well as all of the company websites, television ads, social media platforms, and other materials touting the product are subjected to the scrutiny of regulators (and plaintiffs’ lawyers, for that matter). Even an action as simple as “re-tweeting” another’s praise of the product can be deemed to have been adopted by the company.

Generally speaking, well-meaning food or beverage manufacturers can follow this rule of thumb: If your marketing team is spending significant time and resources to develop a clever alternative to statements or claims that you know are over the line, it’s best to avoid those claims—and any crafty versions thereof. Following these general guidelines will help food or beverage manufacturers avoid both FDA and FTC investigations.

Don’t Pique the Interest of Plaintiffs’ Lawyers

Unfortunately, plaintiffs’ lawyers are not bound by the same regulations as the FDA or FTC to limit the cases that they can bring against food and beverage companies. While manufacturers can look to prior cases filed as a guide to subjects that are the current focus of the plaintiffs’ bar, there is no guarantee your tagline or marketing theme will not be the next target. One way to avoid piquing the interest of plaintiffs’ lawyers is to make sure your product packaging and marketing is well within the boundaries of FDA regulations or guidances. FDA warning letters and FTC investigations are a matter of public knowledge after formal action has been taken. The companies targeted in these actions may find themselves on the receiving end of demand letters and legal complaints by plaintiffs’ lawyers.

Definitive statements such as “proven to improve health” and “proven to cause weight loss,” as well as undefined terms like “pure” and “wholesome,” can also be traps. There has been a significant amount of debate and legal action focused on the meaning of the term “natural,” and variations thereof. This is partly due to the difficulty in defining these terms and also the fact that, to date, the FDA has declined to take a position on the interpretation of the term “natural.” Thus, companies whose marketing strategy heavily relies on the use of these terms would be prudent to stay informed on recent litigation on this topic and the theories pursued by plaintiffs’ lawyers.

Another related area of interest in food and beverage litigation in recent years is the use of genetically modified organisms (“GMO”) in the manufacturing process. In late July 2016, President Obama signed into law a bill that puts in place the framework for the development of a national standard for the labeling of GMO food products. While the specifics of the labeling requirements to be developed by the Department of Agriculture over the next two years remain to be seen, particularly with the new presidential administration, it is clear that the labeling of products containing GMOs will be an area of focus by plaintiffs’ attorneys. Manufacturers whose products incorporate genetic engineering should work with their food and beverage counsel to ensure their packaging and marketing strategies do not unduly increase their exposure.

Tousi is a partner in Nutter’s Litigation Department and a member of the firm’s Business Litigation and Product Liability and Toxic Tort Litigation practice groups. Reach her at 617-439-2872 or [email protected].