As if American food manufacturers didn’t already face enough challenges — competing in a disproportionate global marketplace during a historic economic downturn, not to mention the scrutiny of an aggressive and rapidly growing regulatory regime1 — they now face a barrage of lawsuits from a growing number of creative and well-funded trial lawyers who see food and beverage manufacturers as their next big target2.
Only a very small portion of this litigation actually relates to manufacturing defect claims allegedly resulting in consumer injuries or death, such as with salmonella outbreaks. Rather, the bulk of the litigation is focused on alleged “false advertising” associated with food labeling. The suits are often brought as class actions under the umbrella of loosely interpreted state consumer protection statutes.
What is their beef? Notably, they are not claiming that consumers are in some sort of significant health danger akin to lung claims associated with smoking tobacco. Instead, they essentially say that the health benefits touted on the food labels and packaging — for example, statements and pictures indicating “all natural,” “low sodium,” “100% pure,” “heart healthy,” “cholesterol free”3 — are misleading to consumers.
Household names such as Campbell’s Soup, Cheerios, Hershey’s, and Snapple have been targeted, but any food manufacturer may find itself in the crosshairs. Aggressive defenses against these claims have been asserted, however, and a basic understanding of the primary defenses currently being used by manufacturers is critical for combating them head-on and minimizing their potential impact on a company’s productivity and reputation.