Food and Beverage Labeling Litigation: Current Trends | Skadden, Arps, Slate, Meagher & Flom LLP

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The food and beverage industry has introduced numerous technologies and products over the past year and a half that have raised new questions about advertising practices and new legal questions about the labeling of goods. Meatless meat, COVID “cures” and the perennial debate about what it means for a product to be “all natural” have led to changes in labeling law driven by private litigation parties and regulators.

Manufacturers and states are fighting for meatless meat

With “McPlant” sandwiches appearing alongside Big Macs across the country,1 the growing consumer acceptance of vegetable proteins seems undeniable. As technology evolves to make pea protein and soy acceptable alternatives to beef, questions have arisen as to how these products should be labeled when sold to consumers.

Numerous states recently passed laws prohibiting labeling vegetable proteins as being of animal origin. The Oklahoma Meat Consumer Protection Act, which came into effect in May 2020, requires a seller of vegetable “meat” to put a disclaimer on the packaging – “uniform size and highlighting of the product’s name” – stating that the product is vegetable-based is. Louisiana’s even stricter Truth in Labeling of Food Products Act forbids “[r]to represent a food as meat “as a whole if it does not come from different animal carcasses. Similar laws are pending or have already been passed in other countries.

Vegetable protein sellers have not passively accepted these restrictions. Food manufacturers immediately challenged the Oklahoma and Louisiana statutes on grounds of the First Amendment.2 In Oklahoma, plaintiff Upton’s Naturals Co. suffered an early loss after the court denied the company’s petition for an injunction under the new legislation. The court stated that “even when the term ‘VEGAN’ or the term ‘100% VEGAN’ was used, packaging for products such as ‘Ch’eesy Bacon Mac’ remained ‘potentially misleading’.3 Plaintiff Miyoko Kitchen had a little more success with a First Amendment challenge to California regulations that banned the labeling of its “vegan butter” as “butter”. Although the company failed to challenge the ban on the label “Revolutionizing dairy products with plants” because it allegedly described the “direct interaction with animal dairy products” as “clearly misleading”, the plaintiff succeeded in provisionally enforcing the law to the extent that when it banned the labeling of vegan butter as “butter”.4th

The FTC and FDA are working together to contain allegations of false COVID-19 cures

In 2020 and the first half of 2021, the Federal Trade Commission and the Food and Drug Administration waged their own war on inappropriate labeling. In particular, they have teamed up to crack down on fake COVID-19 treatment claims.5 Actions by the agencies have often targeted supplements providers posing as COVID-19 treatments. The FDA and FTC have each issued over 100 warning letters to vendors marketing dietary supplements as COVID-19 remedies.6th

The FTC in particular has shown that their warning letters have teeth. The agency sent a warning letter to a doctor in May 2020 on the grounds that he had falsely advertised certain vitamin products as the prevention or treatment of COVID-19.7th Less than a year later, the FTC filed a complaint against the doctor and his company, Quickwork LLC, alleging their representations violated the federal new COVID-19 consumer protection act.8th This move reflects how seriously the FTC takes its allegations under the law, which fines those engaged in fraud related to allegations about the treatment, prevention, or diagnosis of COVID-19.9

New regulatory guidelines and standards shed light on evergreen labeling problems

The agency’s guidelines have also given manufacturers and sellers advice on labeling problems. Both a new standard from the Department of Agriculture and an FDA directive provide companies with much-needed clarity when labeling products containing genetically modified organisms – an often contentious issue.10 Although the USDA’s National Bioengineered Food Disclosure Standard has led to legal disputes over its requirement to use the term “bioengineered” instead of “genetically modified” in labeling,11 it serves as an important nationwide guide in a demanding area of ​​labeling law.

The litigation also continues over the intersection of “all natural” labeling and GMOs. The FDA does not require labels to contain GMOs, but some courts have found that “natural” labels are misleading if the product contains GMOs. in the Lee versus Conagra, The US Court of Appeals for the First Circuit overturned a class action lawsuit by a consumer on the grounds that Wesson Oil’s “100% Natural” label was misleading given the presence of GMOs.12th Manufacturers and sellers should continue to monitor such private litigation to determine how the new FDA guidelines may affect the courts’ interpretation of this unresolved area of ​​law.

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1 “McDonald’s Announces New Chicken Sandwich and ‘McPlant’ Burger”, cnn.com (November 10, 2020).

2 See Complaint, Uptons Nats. Co. v. Stitt, No. CIV-20-938-F, ECF No. 1 (WD Okla. Filed November 9, 2020); Complaint, No. 20-cv-00674-BAJ-EWD, ECF No. 1., Turtle Island Foods SPC versus Michael G. Strain (MD La. Submitted October 7, 2020).

3 Uptons Nats. Co. v. Stitt, No. CIV-20-938-F, 2020 US Dist. LEXIS 216883, at * 8-9 (WD Okla. Nov. 19, 2020).

4 Partial waiver and partial refusal of the application for interim legal protection, Miyoko’s kitchen v. Karen Ross, No. 20-cv-00893-RS, ECF No. 46 (ND Cal. August 21, 2020).

5 See Protecting Americans From COVID-19 Fraud, US Food & Drug Administration (July 21, 2020), (Statement by OCI Assistant Commissioner Catherine Hermsen describing the collaboration between FDA and FTC).

6th See Fraudulent Coronavirus Disease 2019 (COVID-19) products, US Food & Drug Administration (last visited June 4, 2021); Warning Letters, Federal Trade Commission (last visited June 4, 2021).

7 FTC warning letters (May 21, 2020).

8th United States of America versus Nepute, 21-cv-00437, Dkt. No. 1 (ED Mo. filed April 15, 2021) ECF No. 1.

9 See COVID-19 Consumer Protection Act of Consolidated Funds Act 2021, Pub. L. No. 116-260; see also “First FTC Case Filed Under New COVID-19 Consumer Protection Act,” Federal Trade Commission (April 15, 2021).

10 See Voluntary Labeling That Shows Whether or Not Foods Are Made From Genetically Modified Plants: Guidelines for Industry, Food & Drug Administration (Rev. March 2019); National standard for the disclosure of biotechnologically produced foods, 83 FR 65814, vol. 83, No. 245 (December 21, 2018).

11 See First on. complete for declaratory and fair discharge, National grocer against Perdue, No. 20-5151-JD (ND Cal. Submitted October 2, 2020), ECF No. 19.

12th Lee v Conagra Brands, Inc., 958 F.3d 70, 77-79 (1st Cir. 2020).

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