Be Careful in Making Product Claims

June 13, 2013
Marketing claims, especially regarding 'natural,' raise your legal risks.
Brian Dunkiel and Rebecca Boucher are attorneys from the Burlington, Vt.-based law firm Dunkiel Saunders.
When it comes to marketing food products, the legal landscape can be a bit precarious. Every claim you make about your product must meet certain standards – whether the claim is on-package, in traditional print, radio or television advertising, or on the Internet or in social media. You may even be responsible for what others say about your product if you inspired those statements to be made.

Lawsuits against food producers marketing products as "all natural" or "100 percent natural" understandably make food companies nervous. Once named in a class action suit, the cost of defending the case, whether it has merit or not, can put a real strain on small food makers.

Unfortunately, other than avoiding the use of the "all natural" claim altogether, there are not many clear legal rules to follow, in part because the use of the claim "natural" is largely unregulated by federal agencies. The exception is the USDA, which has outlined some requirements for natural claims associated with meat and poultry.

There are some common-sense measures food makers can take, however, to evaluate and possibly minimize the risk of being the next named defendant. By way of background, a survey of the pending class action cases shows that the "natural" cases tend to ask courts to resolve the following questions:

  • Are processed sugars and sweeteners natural?
  • Are foods containing GMOs natural?
  • Are foods containing certain synthetic preservatives natural?
  • At some point, does a certain method or extent of processing render a product no longer natural?

Food makers labeling products as "all natural" can use these questions as an initial filter to assess legal risk by evaluating if the products they sell contain the ingredients or use the processes that have been the basis of complaints in pending cases.

There are other measures food makers can take to protect themselves. Obviously, removing the "all natural" claim is the surest way to avoid a class action suit. But, before conceding defeat, natural food product makers should consult with their scientists and supply chain professionals to carefully review their ingredient lists.

Does the product contain ingredients that the average customer can say without thinking too hard? Are some ingredients difficult to source or certify as non-GMO? Clarify internally what does the use of the claim "all natural" mean to the company.

With sound information, there are also precautions food makers can take. For example, can the "all natural" claim be qualified by specifying what aspect of the product or which ingredient(s) are "all natural." Consider using other terms that can effectively and accurately describe the product, such as "made with only simple ingredients."

Other claims are regulated terms. If a food producer wants to claim a product has received a seal of approval or certification from a third party, those claims should comply with the Green Guides published by the Federal Trade Commission. Third-party certifications might include that a product is certified "fair trade" or "bio-based."

Claiming your product is better than others also triggers legal standards. Implied claims trigger the same level of review as direct claims.

Food producers may also want to make claims about the packaging of their products. Claims that the packaging is "biodegradable," "compostable," "recyclable" or "contains recycled content" are all terms covered by the Green Guides. And although the Green Guides are "guidance," their intent is to provide notice about how the feds interpret the law, and in several states they have the force of law.

All claims that food producers make about their products and packaging must be truthful as understood by a reasonable consumer. Food producers can make claims with qualifications, but qualifying disclosures should not appear in small print on a package insert – they should be clear, prominent, understandable and in close proximity to the qualified claim. Food producers should also possess substantiation – competent and reliable scientific evidence – for each claim they make.

Stepping into this area without legal counsel is unwise even for small food processors. Beyond consumer lawsuits and government regulators, large competitors can challenge your claims before the National Advertising Division (NAD) at relatively low cost. A small investment now can save headaches, heartaches and pocketbooks later on.

This article originally appeared in our July issue of Food Processing magazine.

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