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Legal experts discuss likely targets of future label litigation for food companies

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While lawsuits targeting the use of “healthy” and “natural” in food products are not becoming any less popular, food labeling litigation in the future is likely to branch out to additional labeling claims, including those that relate to added sugars, level of processing or the implied use of “natural.” 

That is the belief of two legal experts – Leslie Krasny of Keller and Heckman and Yvonne McKenzie of Pepper Hamilton LLP – who tried to map out future trends in food labeling litigation on Wednesday (Nov. 6) during a panel discussion at the Food and Drug Law Institute's (FDLI) Enforcement, Litigation and Compliance Conference in Washington D.C.

Krasny, who manages the Keller and Heckman law firm’s office in San Francisco and has extensive experience labeling and advertising litigation, said she expects to see an increase in litigation related to the processing of food products.

“For example, a lot of juices now have been treated with [high pressure processing] HPP to give them a longer shelf life,” Krasny said.

The HPP process, which is also used as a partial kill step by manufacturers, is a type of pressure treatment that only increases the temperature of a product by a small increment and is conducted under refrigerated conditions, Krasny explained. And yet, there has been increasing interest by the plaintiffs' bar to press HPP juice manufacturers to indicate on the label that their cold-pressed products have been heated, Krasny said.

Krasny believes that this type of litigation will continue to grow and expand to other products besides juice, such as Greek yogurt that was made using thickeners, instead of traditional cheese-cloth straining to achieve the right texture. Plaintiff lawyers can also easily apply the same logic to products that feature claims such as “hand-made” or “hand-crafted,” Krasny said.

“These are all sort of variations on a theme,” she said.

McKenzie, on the other hand, predicted an increase in lawsuits targeting added sugars, especially in view of the lawsuits filed by a team of California attorneys led by Jack Fitzgerald, founder of the Law Office of  Jack Fitzgerald PC in San Diego. Those lawsuits have targeted cereal manufacturers – including Kellogg’s, Post Foods and General Mills – stating that the companies are falsely advertising their products as healthy, when in fact, they contain a high level of sugar, which when consumed in excess can cause anything from heart disease to type 2 diabetes.

In at least one of those cases – the lawsuit that involves Kellogg’s cereal - a U.S. District judge in August denied the company’s motion to dismiss, allowing the litigation to move forward. The class action lawsuit takes aim at eight specific lines of Kellogg’s cereals, as well as snack and breakfast bars.

“Jack Fitzgerald and his group have filed lawsuits alleging that foods that have too much added sugar ate toxic and unhealthy,” McKenzie said. “I feel that he is testing a theory out with it. He has filed a few cases and have gotten some traction in at least one of them.”

This could easily blow up, because many products contain added sugars, said McKenzie, a partner in the law firm's Philadelphia office.

“And if the theory is that added sugar is toxic and causes a serious health risk, then it could be expanded out to the cereal manufacturers, the breakfast manufacturers,” she said.

Krasny agreed with McKensie, but also noted that those could depend on new scientific research on the health impact of added sugar. Many of those sugar-focused cases involve products that are directed at people who exercise regularly or participate in endurance sports, Krasny noted.

“You need a certain amount of carbs to do that – whether they are more complex carbs or added sugars,” she said. “And I think we need better information on how much is too much.”

According to McKenzie, courts in the future may also see an uptick of cases targeted at products that imply the meaning of “natural,” either by using similar terms (such as “pure” or “simple”) or by channeling the idea that their products are natural through the use of imagery, without using the term directly.

“When you are using terms that are not defined by regulation – you potentially have more risk,” McKenzie explained. “More nebulous terms, like “pure” or “simple,” are more susceptible to confusion among consumers and all you need to form the basis of a lawsuit is whether a reasonable consumer would have a different opinion.”

The same issue applies to products which, instead of using the term “natural” directly, use the serene images of farms and pastures to convey the same meaning, McKenzie noted.

“When we advise clients on their labeling, that has to be taken into account,” McKenzie stressed. “It has to be reviewed holistically – what impression are you trying to leave with the consumer," she said. "It’s not just the term you are using but it’s the entire message you are trying to convey.”

'Natural' and 'healthy' cases to continue

A part of the problem and the reason why manufacturers are beginning to avoid the use of “natural” is that the claim remains undefined  in regulatory language. And that has created a maelstrom of ongoing litigation that still shows no signs of subsiding.

According to McKenzie, "natural" remains the top labeling term in class action litigation and will likely continue to be an issue in the future, in large part because FDA has not defined the term in regulatory language.

“This is a claim that has been an issue for a number of years and there is a lot of litigation out there involving 'natural,'” McKenzie said.

FDA in 2015 announced its intent to define the term but after collecting public comments, regulators grew quiet and have not shown any signs they may be ready to tackle the issue.

“Right now we are in a holding pattern,” McKenzie explained.

Last year, judges were willing to wait for FDA to release a definition and many "natural" cases were stayed by courts under the doctrine of primary jurisdiction. But now that more time has passed with no word from the agency, some courts have started lifting those stays, McKenzie noted.

“Now you see a lot of courts lifting the stays, you see the plaintiffs getting a little antsy and trying to lift the stays,” she said. “I think this may be an area where you are not going to have that defense if you have a ‘natural’ class action on your hands.”  

That is why in new cases that involve the use of “natural,” courts are refusing to grant stays, McKenzie noted.

In the case of Hint, Inc. in which questions the use of propylene glycol, a synthetic substance, in “all-natural” flavored water, for instance, a judge has already indicated that a stay will not be an option, McKenzie said.

“There are many theories to support a natural claim,” McKenzie said.

Cases so far have targeted products advertised as “natural” that contain artificial flavors, synthetic additives, or genetically engineered (GE) ingredients.

In more recent litigation, plaintiffs have challenged “natural” claims on products containing trace amounts of glyphosate (Nature’s Valley) or propylene glycol (Hint Inc.).

Whether an all-natural product can contain GE ingredients has been a hot question in “natural” litigation, and plaintiffs have gone as far as targeting products that were derived from animals that were given rBST or GE feed (Sargento, Dannon).

“The plaintiffs are only going to get more creative,” McKenzie said. “I don’t think this is going to be a claim that is going to go away. There has been [an increase] in 2017 compared to 2016 in all 'natural' litigation and it is because plaintiffs’ attorneys are being more creative in finding avenues to attack the 'natural' claim.”

Legal experts in September estimated that 2017 is on track to become a record year for "natural" claims. 

Just like “natural,” the “healthy” claim remains a ripe source of litigation that does not show signs of slowing down, McKenzie and Kresny said at the FDLI conference. Though unlike “natural,” the term “healthy” is a defined claim, which generally can be applied to products that are low-fat, low-sodium, and have 10% of certain nutrients. However, FDA is in the process of updating its old definition to account for new science on the health benefits of “good” fats and in the process of reviewing thousands of public comments, with no signs of resolution in sight.

Litigation involving “healthy” claims, in the meantime, has proliferated, and while once cases only focused on whether a product is in violation of the claim (such as the case against Kind Inc.), more recent lawsuits, like the ones against cereal makers Post and General Mills, have had a greater focus on the presence of added sugars in products that claim to be healthy, McKenzie noted.

Will FDA define the terms?

The burning question that remains on the table now is whether FDA will finalize new definitions for the use of “healthy” and “natural.”

According to Krasney and McKenzie, it is more likely for FDA regulators to define “healthy” than to tackle the thornier “natural” claim.

“I see ‘healthy’ as more science-based, even though the science has changed,” Krasny said, as she compared “natural” to where the term “organic” stood the 12 years after the Organic Food Standards Act was passed and before the National Organic Program was put in place. The term “organic” in that period was viewed in the same way “natural” is viewed now, because there was no consensus on what the term actually means, Krasny said.

“FDA now is looking for a consensus and if you are looking for a consensus on what 'natural' should mean, that is a long haul,” she noted.

McKenzie agreed. “I think ‘healthy’ is going to be an easier road to go down if you are the FDA,” she said. “I think ‘natural’ is just tough.”

 

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