June 19, 2014
Authored by: Sara Ahmed and Brandon Neuschafer
With 59 % of consumers checking labels, it is more important than ever for food producers and manufacturers to ensure their labels are what they say and to protect themselves while marketing their products.
In February of this year, Digest covered the increase in “all natural” litigation, noting that labeling cases are filling court dockets. Consumer Reports’ recent study regarding customers’ interpretations of food and beverage labels shows that consumers are becoming increasingly concerned about issues such as GMO, organic, and country of origin labeling. The study focused on “natural” labels and according to Urvashi Rangan, the executive director of the Consumer Reports Food Safety and Sustainability Center, “[d]ue to overwhelming and ongoing consumer confusion around the ‘natural’ food label, we are launching a new campaign to kill the ‘natural’ label because our poll underscores that it is misleading, confusing, and deceptive. We truly don’t believe there is a way to define it that will meet all of consumers’ expectations.”
With the FDA taking a hands off approach to defining terms such as “natural,” and courts stepping in to determine the legality of labels, confusion has ensued about the state of labels. Just last week, the Supreme Court ruling in the POM Wonderful case came down creating further confusion as it opens the doors to competitors suing each other over labels under the Lanham Act “even where a product’s labeling and advertising otherwise meet the requirements of a prescriptive statute like the FDCA.”
While we have yet to see how competitors will use the recent ruling to gain a competitive edge in the market, we can count on the fact that other labeling suits are on the horizon. Just last week the Grocery Manufacturers Association, the Snack Food Association, the International Dairy Foods Association, and the Association of Manufacturers filed suit against the state of Vermont claiming that Act 120, which requires GMO labeling, violates their First Amendment rights and have requested injunctive relief to enjoin Vermont from enforcing Act 120. The case also focuses on the cost of re-labeling that will fall on food manufacturers and distributors, an argument not dissimilar from those who battled the County of Origin Labeling regulations earlier this year.