Labels that do not comply with federal regulations are a significant source of legal liability for food businesses. Even established giants like Costco and Bumble Bee Foods overlook this from time to time.

False Advertising, Accidental or Not

A class-action lawsuit from earlier this year claims that Costco’s store-brand fish oil is labeled improperly, misleading the consumer. The product was labeled as containing 1,050 mg Omega unsaturated fatty acids but was only found to have 346 mg through consumer testing. The plaintiff went on to say he would not have purchased the product, or would not have paid as much as he did for it due to its much lower Omega fatty acid content.

Even One Word Can Hurt You

A similar dispute was handled in 2014 when Bumble Bee Foods was engaged in a lawsuit alleging that its canned and pouched tuna product labels were misbranded and mislead consumers. At the time when the lawsuit was filed, Bumble Bee claimed that its product was an “Excellent Source” of Omega-3 fatty acids.

Claims that characterize the level of a nutrient in a food are always defined as a percentage of the daily value of the nutrient. An “excellent source” claim, for example, may be made when a food contains at least 20% of the recommended daily intake (RDI).  Therefore, if there is no established daily value for a nutrient, as is the case with the Omega-3, it is not permissible to claim that a food is “high in,” an “excellent source,” or “rich in” the nutrient. The FDA issues a final rule on the matter in 2014, prohibiting the use of certain nutrient content claims regarding Omega-3 fatty acids.

Bumble Bee Foods could have avoided the legal exposure by specifying only the amount of the nutrient per serving and not implicitly characterizing the level (such as “high” or “excellent source”) of the nutrient in the product. Meanwhile, Costco’s specification was correct in form, yet they failed to disclose the proper information on their labeling, leading to a class action lawsuit.

Though these seem like simple distinctions to make, the full scope of the federal regulations controlling food labeling is burdensome. No claim should ever go onto a food label without a thorough review from a qualified party familiar with the regulations. This is why having an attorney review your food labeling is so vital.

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