A cautionary tale about choosing labels and advertisements that limit the risk of false advertising lawsuitspublished in McAfee & Taft tIPsheet | June 1, 2014
Companies that produce consumer goods and services should take note of a recent string of lawsuits brought against manufacturers in the food and beverage industry. Recently, numerous class action lawsuits have been initiated by plaintiffs challenging the use of the term “natural” on food product labels. The plaintiffs in these lawsuits allege that the term “natural” is false and misleading because the companies’ products contain ingredients that the plaintiffs perceive to be unnatural, including ingredients that are highly processed, are processed with synthetic ingredients, or are genetically modified.
Although the companies named in these lawsuits have argued that the challenged ingredients are in fact “natural,” the term “natural” is, to some extent, open to interpretation. The term has not yet been defined by all regulatory agencies. In fact, the U.S. Food and Drug Administration (FDA) has indicated that it is “difficult to define a food product that is ‘natural’ because the food has probably been processed and is no longer the product of the earth.” It remains to be seen whether the plaintiffs will be able to persuade a jury that the challenged product labels were necessarily misleading. But even if the defendants in these cases ultimately prevail, the cost of defending these class action claims will be substantial.
Companies that produce consumer goods and services – even those outside the food and beverage industry – should treat the recent string of “all natural” litigation as a cautionary tale. Although this most recent round of lawsuits has been directed at the food industry, any company may be named in a lawsuit by a plaintiff who understands the words used on a label differently than the manufacturer.
Fortunately, there are steps you can take to limit the risk that a label will confuse or mislead a customer. An experienced, qualified attorney can help you review your new and existing product labels and can advise you as to which terms to use, which terms to avoid, and which terms might benefit from on-label guidance as to the terms’ meaning. Of course, no label is foolproof, and there is no way to eliminate the risk of future litigation. But by working with your attorney to review your product labels now, you can decrease the risk that customers will misconstrue the claims made on your product labels, and likewise decrease the risk that you will be named in a false advertising class action lawsuit.
 See U.S. Food and Drug Administration, About FDA, What is the meaning of ‘natural’ on the label of food?