Food and beverage companies doing business in the United States should be aware that lawsuits are being brought against businesses based on small amounts of ingredients and trace amounts of substances that are incidentally in the ingredients.

In these cases, plaintiffs argue the product is allegedly falsely advertised due to the amount of a specific substance in the food. There should be more of it – or it should not be there at all. Sometimes the substance has been intentionally added to the food (such as a flavor) but the challenge is to the amount (e.g., too little or allegedly of insufficient quality). Other times the substance is incidentally in the food in trace amounts (e.g., an herbicide introduced at the beginning of the food chain), allegedly rendering the product falsely advertised.

The substances are identified through product testing and/or by scrutinizing product labels. What’s new here is that plaintiffs’ lawyers are now focusing on “themes”– and suing entire industries based on a single ingredient. The lawyers – all of whom work on contingency – are plainly trying to realize efficiencies by spreading costs across many claimants and businesses.

EXAMPLE 1: VANILLA

Take for example the dozens of proposed class action lawsuits being filed against specialty ice cream, dairy and other companies due to their labeling of their products as “vanilla.” In these cases, the plaintiffs plead that labeling the products at issue “vanilla” is misleading because they have less vanilla flavor derived from vanilla beans than their names suggest.

Virtually all of these cases have been filed by the same plaintiffs’ firm. The claims have been brought against food and beverage companies that label one or more of their products as containing the flavor of vanilla. The allegations include the following:

• A label that says cookies “baked with real vanilla” is false or misleading because the ingredients list does not feature vanilla extract as one of the ingredients.
• A label that says cream soda has “creamy vanilla taste” is false or misleading because the soda does not contain vanilla extract, but rather lists “artificial flavors.”
• A “vanilla” label on ice cream is false or misleading because the ice cream doesn’t contain vanilla extract. The ingredients list lists “natural flavor.”
• Flecks in the vanilla ice cream are allegedly false and misleading because they suggest to the consumer that there is more vanilla in the product than is actually the case.
• A label on hot oatmeal that uses the words “Madagascar vanilla” and illustrations of vanilla beans and a vanilla orchid is allegedly false or misleading because the oatmeal doesn’t contain vanilla extract.
• Vanilla yogurt is falsely labeled because the botanically derived natural vanilla allegedly has been replaced with synthetically produced vanillin and other, less expensive (and inferior) non-vanilla substitutes.

These cases are routinely being resolved prior to the filing of a responsive pleading via confidential settlements, but one of the more interesting aspects of the cases is most (if not all) of the products are labeled in a manner consistent with FDA rules and guidance.

EXAMPLE 2: NATURAL/PURE

Another focus of plaintiffs’ lawyers is natural/pure claims. News analysts report that over the past three years, there have been about 300 lawsuits filed over the use of the word “natural” alone. These claims are based on, for example, the alleged existence of trace amounts of the herbicide glyphosate found in agricultural products (such as honey) where the label says “100% pure,” even though the amount of the herbicide actually in the honey is well below regulatory limits. Other claims arise from the presence of rBST in cheese marketed as “natural,” and “natural” yogurts made with milk from cows likely given feed made from genetically modified crops. And claims alleging that products labeled natural or pure are misleading because they contain synthetic ingredients – even in negligible amounts – are becoming more common.

Some plaintiffs’ lawyers are engaging in pre-suit testing of the products to try to develop claims due to the presence of trace amounts of (for example) herbicides, synthetic ingredients and genetically-modified material. These lawyers are testing multiple products and are filing multiple cases in state and federal jurisdictions across the U.S.

The allegations include the following:

• “100% Natural Whole Grain Oats” is allegedly misleading because the product contains trace amounts of glyphosate.
• A company’s use of propylene glycol (an incidental additive commonly used in natural flavors) in beverages labeled “all natural” allegedly renders the label materially false and misleading.
• A specialty ice cream brand that frames itself as an “environmental leader” has allegedly misled the public because the company’s products include ingredients sourced from “inhumane” dairy farms and include traces of glyphosate.
• The labeling on cereal bars containing trace levels of glyphosate is misleading because the bars are marketed as nutritious and made with “whole grains.”
• Trace levels of glyphosate allegedly render an orange juice that includes the word “Natural” in its name mislabeled.
• A “natural” label on sparkling water that contains such chemicals as ethyl butanoate, limonene, linalool (an alleged cockroach insecticide) and linalool propionate allegedly harmed consumers looking for an “all natural” alternative to soda.

The reactions to these claims by courts have been mixed. Some courts have expressed considerable skepticism about trace amounts of herbicides in foods being inconsistent with consumer expectations, dismissing them on the pleadings. Still others have allowed these types of suits to proceed to discovery. Others have stayed cases while waiting for regulators to definitively weigh in on what “natural” means (which thus far has not occurred).

The takeaways for the food and beverage industries are threefold. First, continue to be mindful that compliance with U.S. regulations does not insulate a product from state-specific false labeling charges. Second continue to vigorously monitor supply chain and ingredients sources. Know that any product that is labeled 100 percent anything (e.g., natural, fresh, clean, pure) is likely to be tested and possibly challenged. Finally, be aware that products and brands marketed as “premium” or “specialty” are likely to be held to higher standards and therefore more likely to be targeted. Food and beverage companies need to be careful how they present themselves and their products to the U.S. market, and proactively work with knowledgeable counsel to identify and manage brand risks, including with respect to marketing and labeling strategies, hopefully in advance of any lawsuit being filed.