Mid-year reports have shown that there has been a resurgence in “all natural” litigation against food product companies in 2017 – an expected 30% increase in filings as compared to 2016. Don’t say we didn’t warn you. These filings waned a bit in 2015 after the FDA indicated that it might be looking to define the term. But since seeking public comment, the FDA has been radio silent, and so far in 2017, “natural” claims have been the subject of half the food and beverage class actions filed.
At our annual Farm to Label summit on June 1st, we convened a panel of non-legal experts to address the topic, “Is Your Label a Liability?” and to give their perspectives on creative labeling and potential threats in the legal system. The main take away from the panel was this: brands are still at risk for labeling litigation, and we don’t expect that to change any time soon, but if you are creative you can reduce your risk of being sued, your resulting brand damage if you are sued, and maybe get insurance coverage for your costs. Our panelists included, Renee Wicklund, Of Counsel at the plaintiff’s litigation firm, The Richman Law Group; Greg Fleishman, Co-Founder of the branding agency, Purely Righteous Brands; and Stuart Turner, Esq., Director of Claims Management at the insurance brokerage firm, Hays Companies.
Renee, and her firm, The Richman Law Group, have been on the plaintiff’s side of a number of these “all natural” lawsuits – particularly those involving alleged GMO ingredients and glyphosate residue. Her firm is one of the more discriminating plaintiffs firms out there; they partner with nonprofits, such as the Center for Science in the Public Interest and the Animal Legal Defense Fund, to bring (what they see as) mission-driven litigation. Greg has been on other side of many of the high-profile labeling litigations – in marketing roles with Suja, Kashi and VitaminWater when those companies were high with consumer class actions. Greg noted that success can often trigger litigation. Stuart is the person who finds brands the best policies for them and advocates for coverage under those policies when it’s needed. He explained that although brands can buy coverage for labeling litigation, it can be expensive, and a claim may be excluded from coverage depending on how a complaint is drafted.
So how can you bolster your brand in this complex and often litigious legal climate?
- Weigh the risks of “all-natural” product labeling and seek advice to ensure compliance with the FDA’s labeling regulations.
- Understand the role marketing and PR can play in positive and sensitive situations with regards to product labeling and litigation.
- Explore your options for insurance, and if you have insurance, understand what it will cover in the event of labeling litigation.
Rebecca Cross counsels clients on regulatory, litigation, and policy issues in the food & beverage industry including labeling, advertising, and advising emerging plant-based food companies. Rebecca can be reached via email at RebeccaCross@dwt.com or directly at 415.276.6541.