Getting Ahead Of Food Labeling Class Actions

I. The Shift from “Natural” to Contaminants and Trace Substances

“Natural” labeling class actions were all the rage 10 years ago; today they are rare. But, the “natural” cases haven’t really disappeared, they’ve just evolved. Heavy metals in baby food, PFAS in packaging, pesticide residues, and trace contaminants now appear with increasing frequency. These cases share three defining characteristics:

1. They rely on third-party testing to create a headline number.

2. They frame the issue as a safety or health concern, even when regulatory limits are unsettled.

3. They allege that marketing claims -- -- “pure,” “clean,” “wholesome,” or “made with care” -- -- are rendered misleading by the presence of the detected substance.

Many of these cases proceed in the absence of definitive FDA guidance. That regulatory ambiguity isn’t accidental; it’s strategic. Where FDA hasn’t established a tolerance level or has only issued draft guidance, plaintiffs argue that any detectable amount is inconsistent with the product’s “wholesome,” representations. Failure to disclose these detectable amounts on the label, plaintiffs’ counsel argue, renders the packaging misleading and violates consumers’ right to know what they are eating. Although Plaintiffs’ claims are often exaggerated, judges remain reticent to dismiss cases where allegations of public safety predominate. For the food purveyor, chemically auditing every ingredient and every packaging component is cost prohibitive. What can be done?

The answer lies not in the object, but in the adversary. Class action attorneys are a collection of very intelligent, highly skilled copycats and single-issue specialists. Here’s the evidence: A claim might appear on a label for 5 or 10 years without trouble. Then, there is one class action, followed by 7 to 10 more. This census doesn’t include the demand letters that are quietly settled out of court. This progression over time is attributable to the plaintiffs’ class action copycat effect. One of them comes up with a new theory and the others jump on the metaphorical bandwagon. Imitation is the sincerest form of flattery -- -- and source of profits. They even attend plaintiff’s-bar-only conferences to discuss “best practices.”

Plaintiffs’ class action law firms as “single-issue specialists.” Our firm’s class action defense practice involves three food science PhD’s (one of whom is also one of our attorneys) and other team members who specialize in food science disciplines. Consequently, we take a broad scientific approach to any problem we face. I’m unaware of any plaintiffs’ class action firm with similar firepower. On multiple occasions, we’ve defended a class action asserted on one ground when another, much more lethal one, had been missed by plaintiff’s counsel. Why does this happen? It’s the single-issue specialist effect. A plaintiff’s firm will home in, and refine their form demand letter, on a single topic such as, “no sugar added,” or “100% juice.” In doing so, they develop tunnel vision that excludes other class action possibilities.

How does a food company take advantage of the copycat and single-issue specialist effects to head off class actions before labels are printed? It’s a disciplined four-step process.

Step One: The advising attorney needs to know what are the current class action “hot topics.” Easy enough.

Step Two: The advising attorney needs a solid grounding in how a plaintiffs’ class action attorneys evaluate labels. This is apart from the copycat and single-issue specialist existence. It’s an understanding of what words or phrases might stimulate her/him to include a label’s claim in the population of class action theories that are generally being asserted.

Step Three: Once the client’s potentially vulnerable claims are identified in steps one and two, one must scour the internet to see if anyone is attacking that claim, or a functionally similar one, on contaminant grounds. Relevant databases include news articles about recent cases, court filings and websites that both advertise class settlements and recruit class plaintiffs. Good search terms include lead, cadmium, arsenic, mercury, PBA, PFAS, pesticide and glyphosate -- -- among others.

Advising the Client: If the research uncovers the subject claim morphing into a class action, the advice is obvious: “Don’t do it,” or the copycats and single-issue specialists will catch you. But, if there is no evidence of the claim having been identified in a class action, the advice is much more nuanced: “No one is doing it -- -- yet. And they may or may not ever.” Now, we are sailing in uncharted waters, and this is where the advisory attorney’s experience comes into play in assessing the risk and making a recommendation. There are no shortcuts. It’s a difficult judgment call.

II. ESG and Sustainability Claims: The New Frontier

Another developing front involves environmental and sustainability representations. “Sustainably sourced,” “climate-friendly,” “regeneratively farmed,” and “net zero” claims are increasingly prominent on packaging and websites.

These claims invite two lines of attack.

First, plaintiffs challenge the substantiation behind the representation -- -- arguing that complex supply chains violate the categorical statements. Second, they allege the claims are materially misleading because they rely on internal standards not disclosed to consumers.

Plaintiffs’ various ESG attacks are subsumed in that all-purpose pejorative “greenwashing,” -- -- a word that makes C-Suites tremble and marketing teams cry. In other words, a class action plaintiff’s favored tool.

For attorneys, the key risk is that ESG statements originate in the company’s advertising department and/or on the lips of suppliers’ marketing teams. A food company’s sustainability and investor relations teams may frame language differently than marketing compliance personnel. Plaintiffs’ firms will not draw those distinctions. If the representation appears on the package or the website, it becomes potential class action fodder.

The solution: Take the time to challenge every statement and assumption. In one notable instance, our client (a nationwide convenience store chain) wanted to pitch its coffee as coming from a specific ethnic group in a named region in Columbia. Every time you drank our client’s cup o’joe on the road, you were helping an indigenous people preserve their heritage. Caffeine combined with caring. What could be more wonderful? What could possibly go wrong?

Over the course of 8 days, I made the marketing and purchasing departments trace and dissect every supply chain step between the Columbian region and the client’s cash registers. A couple of things emerged. The ethnic people growing coffee in Columbia did, indeed, exist. And, the coffee the client wanted to sell was definitely from the ethnic group’s region. HOWEVER, our client’s coffee was coming from an industrial supplier in another part of the region having nothing whatever to do with the ethnic group. Result: ugly greenwashing class action averted.

The Takeaway: Substantiating ESG claims isn’t fun. It’s messy, gritty and tedious. And it’s the only way to be sure you’re keeping the company out of an ESG class action.

III. The Enemy Within: The Company QA Department; Compliant But Misleading Labeling And Other Tales From The Crypt

I have great respect for my clients’ QA departments and rely on them heavily for key information. They are careful, skilled and precise. However, as Harry Calahan taught us, “People need to know their limitations.” A label claim can be 100% FDA-compliant and nonetheless misleading. Witness the famous “fat free” bottled water claim that spawned a class action. Undeniably true: the water contained no fat. Undeniably misleading: The claim created the false impression that other bottled waters may contain fat and are therefore inferior products.

The appellate court’s remedy: Class actions cure all ills.

Prior to the class action being filed, “fat free water,” passed muster in the purveyor’s QA department.

The takeaway: QA departments end their inquiries where the FDA’s shore meets the ocean of class action theories. We, as the advisory attorneys, need to delve deeper into the sea.

IV. Standing and Damages: Refining the Injury Theory

Courts have increasingly scrutinized damages models in food cases. Plaintiffs respond by evolving their economic theories.

Rather than alleging a universal price premium untethered to data, some firms are now attempting more targeted regression analyses or consumer surveys to support class wide damages. Others narrow their proposed classes geographically or temporally to address predominance concerns.

The remedy here is simple: Hire the expert economist and scientist to help you respond to the demand letter. Demonstrate to plaintiff early on the struggle to be faced and influence opposing counsel to harass someone else. Don’t wait to retain experts to battle class certification when you’ll already be several hundred thousand dollars into the defense. Hiring the experts up front is key. If plaintiff is driven off at the demand letter stage, your client is the big winner. If the case gets past the demand letter stage, your investment in the experts will pay dividends during pleading drafting and discovery.

V. Prop 65 as a Parallel Pressure Point

Although California Proposition 65 cases are procedurally distinct from consumer class actions, the theories have begun to overlap. A Prop 65 notice of violation alleging the presence of a listed chemical can quickly morph into a putative class action alleging failure to disclose. Our firm is defending such cases now.

For national brands, the intersection of Prop 65 and consumer fraud statutes presents compounding risk. A company may resolve a Prop 65 notice only to confront a parallel false advertising suit. Coordinated strategy-- -- rather than siloed response -- -- is key.

Conclusion

The one constant in food labeling class actions is the continually evolving landscape of substantive theories and procedural strategies. One side gains an advantage, the other side adapts, and then the roles reverse. For the attorneys, the learning never ends.