Paul Peter Nicolai
Food Litigation Upswing
Updated: Jul 15, 2022
Most food and beverage claims are concentrated on food labeling, including whether identified ingredients or flavors are artificial. Claims have also been made about the functions of certain ingredients and aspects of the supply chain for those ingredients. Lawsuits continue to contest the origin of the ingredients, the use of sweeteners, the number of servings in packaged goods, and slack-fill claims.
Some labeling cases center on the accuracy of the amount of a nutrient or ingredient in a product and claim that a product was not made in the manner indicated. These cases also focused on reference to ingredients as accurate when they were processed and misstating the number of servings per package.
Vanilla continues to be a big issue in class actions. These cases typically say that a reasonable consumer anticipates that a product labeled as being flavored with vanilla will not get its flavor from sources other than pure vanilla or vanilla extract.
For several years, FDA suggested a new definition of natural in human food labeling would be forthcoming, but it was not. Consumer challenges will continue in the natural category. These cases generally allege that a product labeled natural contained some artificial ingredient.
Place of origin claims generally says that terms and descriptions on products mislead consumers into believing a product is made in a particular locale or has ingredients from a specific place. Some of these cases say that the product name itself is misleading. Courts generally apply a reasonable consumer standard, concluding that geographical names and related descriptions are typically not misleading.
Slack-fill lawsuits typically allege a product’s packaging is deceptive because it contains too much space that disguises the amount of product in the package.
Baby food manufacturers are facing mounting lawsuits for allegedly failing to disclose that their products contain dangerous amounts of heavy metals. A congressional report found that many of the products made by the country’s largest commercial baby food manufacturers contain significant levels of toxic heavy metals, including arsenic, lead, cadmium, and mercury, which can endanger infant neurological development. A lawsuit filed only days after the report was released accused the company of deceptive and misleading labeling of products that contain heavy metals, including arsenic, cadmium, and lead, at levels above what is considered safe for babies.
The plant-based protein market size in 2020 was approximately $10.3 billion. With the rise of plant-based alternatives to conventional meat products, the industry has come under scrutiny from government regulators and increased risk for litigation. More than half the states considered legislation limiting the ability of plant-based protein producers to label their goods with terms associated with animal meat. Many industries contend these products are misleading consumers into believing that the alternatives are the real thing or that the products are better for consumers than the real thing.
Likewise, demand for plant-based dairy alternatives is booming and, with it, lawsuits and legislation aimed at restricting how those products are labeled. A former FDA commissioner remarked in 2018 that almond milk should not be called milk because almonds don’t lactate. The same argument has been used in court to argue that plant-based dairy alternatives using the term milk are misleading consumers. The area where there is vulnerability is marketing a plant-based product that has milk in its name and is nutritionally inferior.
Given the competitive plant-based protein segment, the food and beverage industry should expect a substantial uptick in litigation.
2020 saw a 10-year high in food and beverage class action filings. There was an 80 percent increase in class action filings from the prior year.