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Product labeling requirements aren’t all black and white

published in McAfee & Taft tIPsheet | January 1, 2015

By Jessica John Bowman

Your company has created and developed a new, innovative product. You’ve tested your product, you’ve adopted a new trademark, and you’re ready to begin manufacturing. The remaining steps of preparing your product for sale, such as developing your promotional materials, product labels and packaging, should be relatively easy, right?

Not so fast. The product labels and packaging materials you and your marketing team create could land you in very hot water. There are a number of federal statutes and regulations that govern the labeling and packaging of consumer goods, some of which may be applicable to your product. For example, the Fair Packaging and Labeling Act (FPLA) and its associated regulations require product manufacturers to provide certain, specific information on the product labels of “consumer commodities.” The FPLA and its corresponding regulations also prohibit certain practices that have been deemed deceptive or misleading. Additional regulations issued under the authority of and enforced by federal regulatory agencies, such as the U.S. Department of Agriculture Food Safety and Inspection Service, the Food and Drug Administration, and the Federal Trade Commission, also apply to products that fall within particular categories of consumer goods, such as food, drugs, cosmetics, clothing and textiles.

In addition to the federal statutes and regulations applicable to product labels, some states have enacted product labeling laws for certain categories of products. Even in those states that have not adopted a statutory labeling scheme, state law tort claims, such as false advertising claims, may be brought against a manufacturer whose product labels are, according to the consumer, false or misleading. So it isn’t enough to merely follow the requirements set forth in the applicable federal and state statutes and regulations; you must also attempt to anticipate how a reasonable consumer would view the claims and representations made on your product labels, and determine whether any of those claims or representations could be deemed misleading.

Ensuring compliance with federal and state labeling requirements while avoiding false labeling claims can be a bit like navigating a minefield. Fortunately, an experienced attorney who is familiar with the applicable rules and up to date on the most recent false advertising case law can help you comply with the minimum statutory and regulatory requirements, avoid language that has given rise to false advertising claims in the past, and identify claims that could be deemed misleading by customers in the future. If you sell a consumer good, consider having an attorney perform periodic reviews of your product labels. Not only is this the surest and best way to minimize the risks associated with product labeling, it will also allow you to get back to what’s really important: developing and manufacturing your products.