ADAM FOX: FDA action on 'natural' will not eliminate vulnerability to food labeling claims
Next, we spoke to Adam Fox, partner at Squire Patton Boggs.
What regulatory issues will be top of mind in 2016?
Think 'alphabet soup'—GMOs, partially hydrogenated oils (PHOs), sugar-sweetened beverages (SSBs) and the FDA. Vermont’s GMO law goes into effect next summer. The Senate may introduce a companion to H.R. 1599 preempting it. The Second Circuit may also issue a decision on the Vermont law’s fate. Watch for other states to push the issue. FDA’s revocation of GRAS for PHOs should prompt food reformulation or further petitioning.
Similar acts of compliance or challenges may arise from FDA’s vending labeling rule. FDA’s final rule on the nutrition facts panel and lobbying regarding what is “natural” are also likely. At the local level, expect public health advocates to push more referenda and legislation to tax SSBs like Berkeley, California.
How will the FDA probe into 'natural' claims impact the food litigation landscape?
FDA action will not eliminate vulnerability to food labeling claims. The Supreme Court decision in POM Wonderful allowing competitor suits for false advertising despite compliance with FDA regulations warrants significant prudence to avoid exposure. The recent California Supreme Court decision in Quesada v. Herb Thyme Farms, Inc. allowing a consumer class action to challenge 'organic' labeling despite the federal regulations governing that word likewise suggests similar caution.
Can you cite a case that might have a big impact in 2016?
The case law is developing rapidly, in such wide-ranging subjects as standing, preemption, ascertainability of class membership—the list goes on.
More than any one case or legal issue, I expect an increasing shift by both plaintiffs and defendants to focus on science. Already, plaintiffs are increasingly pursuing claims that advance theories of falsely advertised health benefits or even potential negative health consequences.
\Defendants are also beginning to defend more vigorously their products and the representations made about them, even as they continue to pursue more traditional, technical defenses.
Any other thoughts?
As food and beverage companies continue to face litigation risks in 2016, they should stay focused on the big picture.
More important than any single lawsuit is their credibility and trust among consumers, and that informs their brand value. This suggests paying more attention than ever to evolving scientific research concerning a company’s statements concerning health or nutrition, as well as practices in their supply chains. Also, because aggressively—even successfully—defending lawsuits may not put a stop to conspiracy theories that go viral on social media, public relations responses should be considered a central part of any defense.
Click HERE to see what food & beverage CEOs think about the FDA's probe into 'natural' claims.
