Over the past several years, it has been hard to miss the trend of independent labs and the plaintiffs’ bar scrutinizing—and suing upon—such findings as fat content in food products (e.g., Muscle Milk and ground beef), or the veracity of representations that consumer goods are “natural” or “preservative-free” (e.g., “100% grated Parmesan cheese”). By one statistic compiled by the U.S. Chamber Institute for Legal Reform, from 2008 to 2016, food marketing cases increased from 20 to 425 active cases in federal courts, representing more than a 2000% increase. More recently, the ante has been upped with reports that ubiquitous packaged products like mac-and-cheese contain levels of phthalates. In simplest terms, phthalates are a type of chemicals often used to make plastics more flexible and resilient. A report published July 12, 2017 in the New York Times online edition blared that “[p]otentially harmful chemicals that were banned from children’s teething rings and rubber duck toys a decade ago may still be present in high concentrations in your child’s favorite meal: macaroni and cheese mixes made with powdered cheese” based upon a “new study of 30 cheese products . . . detect[ing] phthalates in all but one of the samples tested, with the highest concentrations found in the highly processed cheese powder in boxed mac and cheese mixes.” Signaling the alarm, the Times article noted that phthalates “can disrupt male hormones like testosterone and have been linked to genital birth defects in infant boys and learning and behavior problems in older children,” explaining that “[t]he chemicals migrate into food from packaging and equipment used in manufacturing and may pose special risks to pregnant women and young children.” The study, conducted by Flemish Institute for Technological Research (VITO), a reportedly independent lab in Belgium but presented under covering report by the Coalition for Safer Food Processing & Packaging, challenged Kraft by “calling on [the company] to lead the industry to address the challenge posed by phthalates because Kraft is, by the far, the largest brand, and therefore has the power to push for industry-wide change.”

The societal changes surrounding packaged food products are well accepted: consumers—typically informed parents—are more conscious than past generations about what they eat and feed their children. Millennials may well become even more scrutinizing and they represent a massive group of consumers. What remains uncertain is whether the recent press showered on phthalates will prompt the plaintiffs’ bar to file new personal injury actions. Although it is not clear yet whether the plaintiff community will invest in suits regarding phthalates, it is a topic worth watching carefully in the second half of 2017 and beyond. Undoubtedly, causation would be difficult to establish with the science still undeveloped concerning the alleged danger posed by such small amounts of phthalate coatings. Some however may well seize on these studies while also funding further studies in an effort to develop the science and causation theories to launch mass torts or class actions. Such efforts may already be underway.

Given the trends in recent years of ballooning food marketing litigation, however, the most likely lawsuits facing producers such as Kraft are labeling claims. The fact that litigation is now rampant based on what most mainstream members of the public would consider “minor” labeling violations (for example, the seemingly healthy and natural KIND bars being represented as “healthy” or “natural”) reveals the low threshold for actionable claims. Litigation of this sort has been especially targeted at makers of goods labeled with so-called “negative claims” such as “organic” or “non-GMO.” Take for example Gallagher v. Chipotle Mexican Grill, Inc., 2016 WL 454083 (N.D. Cal. 2016), in which plaintiff sued under California’s consumer legal remedies act, false advertising law, and unfair competition statute “claim[ing] that she decided to purchase the food after having seen or heard advertisements, and in-store signage, that Chipotle used ‘only non-GMO ingredients.’” 

These types of lawsuits may well impact manufacturers, retailers, packaging vendors in the future, as regulations and industry practices are now being used to measure such descriptors. Indeed, guidance published in August 2016 by the FDA’s Food Safety and Inspection Service (FSIS) entitled Statements That Bioengineered or Genetically Modified (GM) Ingredients or Animal Feed Were Not Used in the Production of Meat, Poultry, or Egg Products explains how companies can make labeling claims concerning the fact that bioengineered or genetically modified (GM) ingredients or animal feed were not used in the production of meat, poultry, or egg products. This guidance about such “negative claims” in foodstuffs is just one indicator of how the regulatory sphere is permeating, but not necessarily simplifying, these food labeling issues. These new guidelines may well be used to show that certain labeling is somehow per se non-compliant and therefore “objectively” actionable. What all of this means for mac-and-cheese and other food producers is beware the trend.