Litigation Defenders

A recent consumer trend is the desire for clean food. Celebrities swear that clean foods are the reason for their slim waistlines, fad diets make clean foods the focus of meal plans, and “experts” claim that health adversities will disappear with a clean food diet. Manufacturers, such as Panera Bread, Subway, Kraft, and General Mills, have responded to this trend through reformulating their products to be “clean.”   

Clean foods are often accompanied by clean labels. Clean foods and clean labels are not interchangeable phrases. Clean food refers to products containing “natural,” organic or minimally processed ingredients; or eliminating additives or chemically modified ingredients, which consumers perceive negatively.

Clean labels are clear and understandable declarations about a product. Additionally, clean labeling encompasses claims, such as natural, clean, small-batch, no preservatives, made from nature, etc. Neither clean food nor clean labeling are statutorily defined or regulated, and their usage varies from one company to the next. Due to the inconsistencies that arise from industry manufacturing clean foods and utilizing clean labeling, are companies opening themselves up to adverse interactions with the government agencies or consumers? Absolutely.

The costliest risks that companies are likely to face with manufacturing clean foods and using clean labeling include (1) class-action lawsuits involving false advertising and (2) recalls due to adulteration. Litigation stemming from the use of the terms, such as “natural,” should serve as a lesson to industry that the use of vague, undefined terms increases the risk of costly litigation. Clean food also increases the possibility that a product will be adulterated. Due to less processing, additives, or chemically modified ingredients, foods have shorter shelf-lives and may be more susceptible to pathogens. 

If a company wants to manufacture clean food and have clean labeling, how can it mitigate the risk of litigation or adulteration?

1. Comply with federal and other applicable laws. If a company wants to manufacture clean food and use clean labeling, the company needs to ensure that the products meet the requirements of federal and other applicable laws.
2. Assess the company’s risk profile. A new product type or label can create a risk of litigation. Some companies believe that the marketing benefits of the new product or label outweigh the risk of litigation. It is imperative to know a company’s risk profile, and whether the company is prepared to defend a lawsuit. Always keep in mind that just because a product or label meets statutory requirements does not mean that the product or label will not increase the risk of litigation.
3. Educate the consumer. Educating the consumer on how a company defines clean food or uses clean labeling can help to mitigate the risk of litigation.  
4. Substantiation. Substantiate how the company defines clean food or uses clean labeling and have documentation to support such substantiation. If the product is litigated, the substantiation and documents of support will be helpful to explain to the court why the product or the labeling is clean.
5. Lawyer up. Legal counsel will be able to assess whether the product is violative or could be challenged by consumers. Legal counsel will advise a company on potential issues with a particular product, but also will modify the product to reduce the risk of litigation.

Clean foods and clean labeling are consumer trends, but they are also powerful marketing schemes and present risks for litigation and adulteration. All risks cannot be eliminated when manufacturing clean foods and using clean labeling. However, following the listed tips above can reduce time, money, and resources used to defend lawsuits, as well as curtail the risk of a tarnished brand image.