Executive Summary
Our Food & Beverage and White Collar, Government & Internal Investigations Teams review recent moves by state attorneys general to follow the “Make America Healthy Again” agenda and what they signal for food and consumer products companies.
- State attorneys general are launching investigations under state consumer protection and unfair and deceptive trade practice statutes
- Enforcement activity is targeting the self-affirmed generally recognized as safe (GRAS) pathway, single-use plastics, and ultra-processed foods
- Companies should review their marketing strategies aimed at children and take stock of compliance gaps in the supply chain
Since taking office last year, U.S. Secretary of Health and Human Services (HHS) Robert F. Kennedy, Jr.’s “Make America Healthy Again” or “MAHA” movement has taken center stage on HHS and Food and Drug Administration (FDA) agendas. As we previously reported, Kennedy leads the Make America Healthy Again Commission and released its strategy report outlining the Trump Administration’s plans to combat chronic disease in children, with potentially far-reaching implications for regulated industries.
While HHS and FDA have taken some actions to scrutinize food ingredients (e.g., announcing a forthcoming proposed rule on the regulatory framework used for generally recognized as safe (GRAS) ingredients, revising the Dietary Guidelines), individual states have picked up the baton and are quickly leading the charge to further a number of MAHA priorities focused on the consumer packaged goods space. States have mobilized with legislative pushes aimed at restricting food and beverage ingredients and have enacted and proposed new mandatory labeling requirements for food products. At the same time, food and beverage companies have seen an unprecedented surge in state attorneys general (AG) investigations and enforcement actions.
Recent State AG Enforcement and Investigations Activity
State AGs are sending out broad, boilerplate subpoenas and investigation demands to companies in the food and beverage industry, relying on state consumer protection and unfair and deceptive trade practice statutes. The increased state AG activity has focused on a few areas:
- The self-affirmed GRAS pathway (as we previously reported, the FDA is exploring eliminating what they call a “loophole” in the process).
- Ingredient transparency.
- Processing of ingredients and finished product.
- Marketing food and beverage products to children.
What primarily started in the cereal and baby food spaces has quickly expanded to the beverage side. While many investigations still remain confidential, a few are public:
- Artificial Colors. The Texas Attorney General’s Office has announced multiple investigations under Texas’s Deceptive Trade Practices Act against multinational food companies, primarily targeting their use of synthetic dyes. A number of states, like West Virginia and California, have also passed or proposed legislation targeting artificial colorants, which will also lead to enforcement activity.
- Heavy Metals. The Arizona and District of Columbia AGs jointly urged federal investigation into commercial baby foods for lead and heavy metals. The Texas AG also began an investigation into heavy metals in infant food products.
These investigations can lead to state lawsuits.
- Environmental Marketing Claims. The California AG announced a lawsuit alleging deceptive marketing of single-use plastics, which are frequently used by companies in the food and beverage space.
- Ultra-Processed Foods. The City of San Francisco filed a lawsuit against some of the nation’s top food manufacturers targeting “ultra-processed foods” under its unfair and deceptive acts authority.
Notably, state enforcement actions have come from both sides of the political aisle.
What Industry Should Do Next
This ever-changing and fragmented regulatory landscape can make continued compliance a challenge for companies selling products across states with differing requirements. Now is the time to take stock of quality and supply chain compliance gaps to be best prepared if a state AG or other agency comes knocking. Companies should proactively mitigate risk by:
- Identifying any gaps in documentation supporting ingredient safety and product health claims.
- Reviewing marketing strategies and advertising to ensure relevant policies and company claims are buttoned up, particularly for companies that market to consumers under 18.
- Scrutinizing regulatory compliance exposure in potential M&A activity.
- Engaging experienced counsel to help review and identify risk areas.
In the coming year, we expect continued activity from states prioritizing ingredient quality and marketing practices. Consumer class actions may also gain traction as state activity becomes more publicized.
Companies should immediately engage counsel upon receipt of a civil investigative demand or subpoena from any investigative agency. Experienced outside counsel can better help navigate state AG expectations to best position companies to avoid litigation and public reputational damage.
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