Food industry associations and consumer advocacy groups have influenced the development of many key U.S. food policies and regulations, but the impact of consumer lawsuits upon the regulatory process cannot be denied. Since 2008, the number of class action lawsuits filed against food and beverage companies has increased from approximately twenty to more than a hundred lawsuits annually in recent years. While some of the legal challenges could be dismissed as frivolous, several cases have fueled the evolution of significant labeling and safety regulatory initiatives that are now under consideration by the U.S. Food and Drug Administration (FDA).   

In recent years, the majority of lawsuits against food and beverage companies have been triggered by misleading labels or unresolved regulatory issues. To avoid the burden of a lawsuit, companies should be practicing due diligence and monitoring the development of the following 5 food safety and nutrition issues that have been highlighted by consumers.                                                                                         

1. ‘Natural’ Foods Containing GMOs

The use of food labeling claims, such as ‘natural,’ on food products containing Genetically Modified Organisms (GMOs) has been a slippery slope for food manufacturers for many years. In fact, numerous lawsuits have claimed that food manufacturers are misrepresenting their products. Since 2015, some of the leading U.S. food companies have been targeted in consumer lawsuits regarding non-GMO claims and the use of the term ‘natural’ on food products containing ingredients derived from genetic engineering. A list of the brands and companies involved in selected “All Natural” lawsuits is available here.

The FDA’s informal definition of ‘natural’ and the lack of a federal GM food labeling standard have fueled these lawsuits. Under the 2016 law, National Bioengineered Food Disclosure Standard, the USDA must develop regulations to establish a national and mandatory food labeling standard. Food companies will be required to disclose the GM content of products using approved labeling options. The agency is expected to complete the rule by July 2018.

2. Acrylamide in Coffee

Acrylamide is a natural byproduct of the coffee roasting process and also forms during the high-temperature cooking of certain carbohydrate-rich foods. In 2010, a consumer advocacy group, the Council for Education and Research on Toxics (CERT), filed a lawsuit to require all manufacturers, distributors and retailers to post a warning label on coffee products sold in California due to the formation of acrylamide in roasted coffee.  

Under the California law commonly known as Proposition 65, companies are required to post a warning or to label products containing any chemical at levels known to cause cancer or reproductive toxicity.

On March 28, 2018, a California Superior Court judge ruled in favor of the advocacy group (i.e. CERT) to require California retail establishments to post a warning about the potential cancer risk associated with the formation of acrylamide in roasted coffee. The warning statement is required if the level of acrylamide exceeds the Proposition 65 ‘Safe Harbor’ levels.

What are the national implications for this decision? Time will tell if consumers want to see acrylamide warning labels on coffee sold outside of California or on other products at risk for acrylamide formation.

3. Arsenic in Rice-Based Foods

The presence of heavy metals in food, particularly lead and arsenic, is a potentially serious health concern. Recently, the Consumers Union asked the FDA to complete its draft guidance on arsenic in infant rice cereal and urged the U.S. Congress to set limits on inorganic arsenic for all rice-based foods. The position of the consumer watchdog group is aligned with a new government report and the proposed legislation known as RICE (Reducing food-based Inorganic Compounds Exposure). On April 16, the Government Accountability Office (GAO) issued a report on arsenic in rice, which suggested the FDA needs to accelerate the completion of its 2016 draft guidance that established a 100 parts per billion (ppb) limit for inorganic arsenic in infant rice cereal.

4. Sodium

Serious health risks, including high blood pressure, heart disease and stroke, have been associated with the excessive sodium content of the typical American diet. Citing the significant health risks of sodium, the Center for Science in the Public Interest (CSPI) first petitioned the FDA in 2005 to revoke the Generally Recognized as Safe (GRAS) status of salt and to mandate sodium reduction within processed foods. In 2015, the consumer group sued the FDA for failing to act on the 2005 petition.

Due to mounting pressure from consumers, the FDA issued a draft guidance in 2016 to establish voluntary short-term and long-term targets for reducing the sodium content of 150 categories of food. In March, the FDA Commissioner Scott Gottlieb stated that the agency will urge the food industry to voluntarily reduce the amount of sodium in processed foods. The FDA plans to release updated short-term targets for sodium next year.

5. Definition of ‘Healthy’

Added sugar or ‘No added sugar’ labeling claims on products labeled as “healthy” have provided fertile ground for many lawsuits. If a product is labeled as “healthy,” manufacturers are at risk for a class action lawsuit if the product fails to meet certain criteria, particularly if the product contains an excess amount of added sugars. In recent years, several juice brands with ‘no sugar added’ claims have been targeted in lawsuits.

In March, the FDA Commissioner Gottlieb revealed plans to define ‘healthy’ foods and to establish a ‘Healthy’ symbol for packaged food labels. The agency also suggested the ‘healthy‘ claim is “ripe for change.” In the future, we could see the FDA expand the definition of ‘healthy’ beyond nutrients to encompass dietary patterns and food groups such as whole grains, low-fat dairy, fruits and vegetables. The FDA’s current position on the Use of the Term ‘Healthy’ in the Labeling of Human Food Products was established within a 2016 guidance document.

The Importance of Due Diligence

Consumers expect food companies to ensure accurate labeling and compliance with all food safety regulations. To combat the rising tide of lawsuits directed against food and beverage companies, the food industry must implement proactive measures.

The burden is clearly upon food and beverage companies to ensure their products are in compliance with federal and state regulations, but also to ensure the accuracy of their labels, ingredients and related nutritional analysis. In fact, a 2017 report by the Institute for Legal Reform suggested that “Plaintiffs’ lawyers are increasingly testing products, or relying on testing conducted by others, to allege that food products include trace amounts of substances that render the product’s labeling inaccurate or misleading.”

Food label reviews and the analysis of food products by an accredited laboratory are proactive ways for food companies seeking to demonstrate due diligence and compliance with the appropriate regulations. Mérieux NutriSciences offers GMO testing and full-service analytical chemistry testing, including for heavy metals, contaminants and nutritional analysis, to ensure your products are in compliance with FDA, USDA and Proposition 65 regulations. Once you’ve tested your product, a food label review will confirm that your label also complies with the applicable regulations. Our Food Labeling Compliance experts can review specific aspects of your food label, such as the statement of identity, ingredient list, allergen declaration, or the entire label, including claims and font size. Ensure the safety of your product by downloading our Food Label Review or Analytical Services Information Sheets today!

 

Meet the Author

Patrick Kennedy
Information Services Manager, Mérieux NutriSciences

Patrick Kennedy is the Information Services Manager for Mérieux NutriSciences. He has over 15 years of food industry experience and has written extensively covering a wide range of food safety and regulatory subjects. He holds a MS degree in information science from the University of Illinois, and is a member of several industry organizations including AOAC, IFT and IAFP.

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