With so many friends in the industry, Interact wanted to pass the mic. off to a few of our favorite food packaging professionals. Although we are more design-minded we have a few friends that will be taking over the Interact blog to provide a little more knowledge about the ever-changing food and beverage industry. With over 11 years experience as a lawyer specializing in food & beverage, dietary supplement, and cosmetic industries, Justin J. Prochnow was able to provide us with a few cliff notes concerning little-known knowledge about controversial PDP claims. Here’s what he had to say:
Language is an important element of the law and, for that matter, being a lawyer. Have you ever met a lawyer that didn’t like to wax poetic about anything and everything? In my practice representing companies in the food, beverage, dietary supplement and cosmetic industries, “wordsmithing” has never been more critical. The importance of carefully selecting the right words to promote products in labeling and advertising is at an all time high. While companies are competing to sell products and be persuasive in the message, companies must also use caution when composing their labeling and advertising messages. The use of certain words and phrases, especially on food packaging and labeling, can result in a company making certain claims that it does not realize it is making and did not intend to make, putting it at risk from regulatory agencies like the Food and Drug Administration (“FDA”) and the Federal Trade Commission (“FTC”), as well as plaintiff lawyers looking to ride the wave of class action lawsuits over labeling and advertising claims. Never has it been more important to choose your words carefully – below are just a few of the advertising words receiving heightened scrutiny.
Any discussion of advertising lingo that draws attention must start with “natural” or “all natural”. Litigation over use of the term “natural” has involved products with alleged non-natural or processed ingredients like chemical preservatives, high fructose corn syrup, alkalized cocoa, evaporated cane juice, and GMOs and included products ranging from ice cream and granola bars to Goldfish crackers and margaritas. Without a formal definition contained in laws or regulations enforced by the FDA, the use of “natural” and “all natural” in the labeling of food, beverages, and supplements becomes a murky issue that, if challenged, is likely to result in protracted litigation to defend. While such litigation is certainly winnable, many companies are left with a cost/benefit assessment of settling out quickly or fighting such a case over several years while incurring several hundred thousand dollars in costs. Thus, a company must really ask itself “Is the use of a claim like “natural” worth the potential risk of a class action lawsuit?” For some, the answer still may be yes; for many, the answer is to move on to some different language.
One of the more infamous and recent misuses of the “natural” claim involved Naked Juice. Previously, the juice brand claimed to be 100% all natural juice when, in fact, it was not. Naked included sugar in the ingredient list as “evaporated cane juice” in addition to portraying the product as “all natural, 100% juice”. The class-action lawsuit ultimately ended in a massive recall of the not-so-natural juice as well as a large payout by the PepsiCO., the owner of Naked.
The word “healthy” is another word that is often used in the labeling and advertising of food products. What many people don’t realize is that when the word “healthy” is used to suggest that the food, because of its nutrient content, may be useful in maintaining healthy dietary practices, it is considered an implied nutrient content claim and must comply with certain requirements set forth in the regulations enforced by the FDA. Foods using the word “healthy” to promote the product must meet the criteria for low fat, low saturated fat, a low level of cholesterol and, additionally, must have at least 10% of the RDI or DRV for vitamin A, vitamin C, calcium, iron, protein, or fiber. While several recent warning letters from the FDA emphasized the need for compliance with the regulation from a regulatory standpoint, the ensuing class action lawsuits from plaintiff lawyers that used the warning letters as “roadmaps” for their complaints cause perhaps even concern and consternation for industry companies.
Although KIND has re-formulated to create a healthier bar, the FDA recently recognized the company’s failure to meet such regulations. Containing more than one gram of saturated fat was the first violation, and upon further investigation, the FDA found that majority of KIND bars were not anywhere near as healthy as they claimed to be. KIND is working quickly to comply with regulations as the FDA will be strictly enforcing “healthy” claims on all food labels moving forward.
Sometimes even a seemingly innocuous word can implicate the need for regulatory compliance. Using the words “only” or “just” to promote favorable attributes of a nutrient in a product, such as “Only 100 Calories” or “Just 5g of Fat” has certain implications. The FDA deems words like “only” or “just” to imply that the food meets the requirements for low nutrient content claims. Thus, companies must ensure that the use of those words is consistent with the claims that such statements likely imply or the label must carry a disclaimer adjacent to the claim indicating it does not meet the requirements of the implied low claims, such as “only 200 mg of sodium, not a low sodium food.”
The use of “only” or “just” in the context of nutritional and ingredient attributes are so strictly enforced by the FDA that most brands opt for a sub-brand that adheres to an individual consumer need state. In 2014, Chobani released Chobani Simply 100 in an effort to provide a lower-calorie product while avoiding conflict with the FDA. The brand found that they were losing sales because of calorie content even though consumers liked the overall product. Rather than fudging the rules, Chobani put forth serious effort to comply with FDA regulations.
“Natural”, “Healthy”, and “Only” are just three examples of words that must be evaluated carefully before using them to promote products. The current climate of scrutiny over labeling claims by regulatory agencies, consumers, and class action lawyers makes it imperative that companies really understand the implications of their claims and have someone knowledgeable review all labeling and advertising. No longer can a company merely copy a competitor’s claims because if the competitor has not properly vetted its claims, the company is merely copying the answers from “D+ student” and the FDA, the FTC, and plaintiff lawyers will know!
Justin J. Prochnow is a Shareholder in the Denver office of the international law firm of Greenberg Traurig LLP. His practice concentrates on regulatory and legal issues affecting the food & beverage, dietary supplement, and cosmetic industries. He can be reached at (303) 572-6562 or firstname.lastname@example.org and followed on Twitter at @LawguyJP.