Healthy Confusion Over Product Package Labeling

A grocery store shelf stocked with different brands of yogurt

It’s a confounding time for consumers looking to eat healthier. Confronted with claims that products are“healthy”, “natural” and contain “no genetically modified organisms (GMO)”, it’s becoming more difficult for companies to describe their products in ways that don’t run afoul of rules and regulations that cover labeling. And with 2019 bringing new and updated rules, some industry experts are saying we’re going to see increased litigation in the packaging arena in the coming year. For example, Keri Borders and Dale Giali, Los Angeles-based attorneys who are partners in the Litigation and Dispute Resolution practice of Mayer Brown, predict such litigation is on the horizon in a couple of food-related areas:

Multifunction ingredients. This covers products with labels claiming they don’t contain something – think “no preservatives” or “no artificial flavors” – but do have multifunction ingredients that could function as such things. For example, it could be problematic if your labeling says your product contains citric acid, which is then alleged to have preservative capabilities or malic acid, which is then alleged to be an artificial flavor.  

Sugar as a bad word. While some products are labeled or marketed as being better or healthier for consumers, some lawyers could claim they contain excessive amounts of sugar and file suit accordingly.

GMO feed. Some products may be labeled as having been made using natural ingredients or without ingredients containing GMO, but which may have had GMO feed in the supply chain of their ingredients. Think of cheese made with milk that came from a cow that ate feed, which was developed with crops grown from GMO seeds.

Slack fill. These would be challenges to products that come in packaging that some say is excessively large for the amount of product inside. (For example, a bag large enough to contain 16 ounces of pita chips but with only 12 ounces inside.)

So, what can we expect? Borders believes the U.S. Department of Agriculture will issue regulations on mandatory labeling of the presence of GMO in food products. While they’ve issued proposed regulations, the USDA has yet to finalize them. Expect to see increased litigation on GMA labeling in the coming year, as well as in other areas of food labeling. While both Giali and Borders say it’s risky to predict where class-action lawsuits will lead us in the future, if 2018 is any indication don’t be surprised if we see more litigation in the coming year.

If you have questions about product packaging for food or any other category, contact Pioneer Packaging today.

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