If you are tuned to news about regulatory issues you are likely aware of recent lawsuits being brought against companies for claims made on food products. In one instance a mom in California is suing Nutella® over claims that the product is part of a healthy breakfast. In another, the National Consumer League (NCL) has filed a complaint with the Federal Trade Commission alleging that the labeling and claims made on VitaminWater® product labels are “dangerously misleading.” This is not the first time complaints have been raised regarding VitaminWater® labeling. Last year the Center for Science in the Public Interest (CSPI) filed suit claiming that the labeling of this product line included inappropriate nutrient content claims and further that the products were in violation of FDA fortification regulations.
These actions by groups and private citizens reveal a level of risk to companies making claims about their products that go beyond the typical risks from FDA and FTC that we regularly alert our clients to when reviewing their labels, brochures and websites. It is rare that product labeling poses no risk and every company must determine the level of risk they are comfortable with. It is common for companies to decide to push the envelope and take some risk since government enforcement actions are taken against only a small number of companies and while relabeling can be expensive, first offenses rarely result in fines. Groups such as NCL and CSPI typically target large, high profile companies but the lawsuit by the private citizen against Nutella®, a product with a relatively small market share, made me sit up and take notice; particularly since the product does include nutrition information in compliance with FDA labeling regulations. While the advertising tells the whole story—that Nutella® can be part of a healthy breakfast—the suit demonstrates that the consumer took only the highlight of the marketing message—healthy. It will be interesting to see what happens with this case. Will the standard that claims must be truthful, not misleading and supported by data have to be modified to account for consumers who do not listen to the whole message?
While we cannot predict the outcome of these cases, we work to help our clients understand labeling regulations and the risks posed by the claims they make about their products. We welcome your inquiries regarding claims, labeling and product development and hope to partner with you for your success.