Sugar and Salt: Popular Ingredients with Possible Lawsuits

From a litigation perspective, the most troubling aspect of the Added Sugars panel is the potential for this new labeling requirement to provide fodder for food labeling lawsuits. Given the lack of reliable evidence on the health effects of Added Sugars as opposed to total sugar intake, it is unsurprising that the FDA has thus far declined to provide guidance to food manufacturers on the proper protocol for measuring and establishing which sugars are “added.” What is more, FDA acknowledges: “[T]here are currently no analytical methods that are able to distinguish between naturally occurring sugars and those sugars added to a food.”

In lieu of reliable analytical methods for measuring added sugar content, the FDA proposes new mandatory record-keeping procedures that would allow regulators to verify that the Added Sugar content reported on the label matches up to the sugars added according to a food manufacturer’s production protocols. FDA could, in theory, take action against a food manufacturer who fails to maintain adequate records, even if there is no affirmative evidence that the product in question was mislabeled. Such an approach, in turn, leaves plaintiffs free to file suit by arguing that the manufacturer misled the public in reporting a specific Added Sugar content, when in fact the manufacturer could not verify that the reported amount was accurate. Under this approach, FDA’s record-keeping policies potentially turn manufacturers into defendants.

The Added Sugars declaration could also lead to litigation against manufacturers of food products that contain multiple sweetening agents, particularly if naturally-occurring sweeteners such as fructose are involved. While the FDA notes that certain products such as soda will contain only added sugars, its simplistic Added Sugars model makes no mention of how to sort between multiple ingredients that all contain some type of sugar.

Consider a hypothetical juice product made from 90 percent grape juice and 10 percent pineapple juice. The manufacturer, not unreasonably, considers sugar in the grape juice inherent in the production process and sugar from the pineapple juice to be Added Sugar, and the labeling reflects this view. In a case like this, however, the FDA provides no standards as to how the manufacturer should determine which are the inherent sugars and which are the Added Sugars. A skilled plaintiff attorney is free to file suit claiming that the product is mislabeled, either on a theory that the inherent sugars should actually be reported as Added Sugars, and vice versa, or that all of the sugars in this product should be reported as Added Sugars.

This problem is even more pronounced if one considers another hypothetical juice product made from equal parts of 10 different types of juices, similar to a number of currently popular brands. Which of the 10 potential sources of sugar are Added Sugars? Likewise, imagine a cereal in which sucrose is added to the cereal flakes, and then later in the production process apple juice is added for flavor. Is the fructose from the apple juice an Added Sugar, or is it only the sucrose? If the manufacturer fails to include the fructose as an Added Sugar, have they mislabeled its product? The only certainty is that the FDA has thus far given no indication to manufacturers how to handle this issue, leaving manufacturers to guess on the right approach and plaintiffs free to argue that a different approach should have been followed.

Salt: Lower Levels or Else?

In June 2014, a few months after FDA presented its Added Sugars proposal, the Administration announced its intent to issue voluntary guidelines for food producers to reduce sodium levels. While FDA has not put forward any timeline for these guidelines to be released, the public was told to expect them “relatively soon.”