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Natural Archive

Food Law and Policy Weekly Review, February 2 – 6, 2015

February 9, 2015

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  • Cornell announced a $712,000 in USDA grant for its Northeast Beginning Farmer Program. Part of the the funding will be dedicated to creating training programs and farmer-to-farmer networks for military veterans transitioning into agriculture. Services to be provided by the Farmer Veteran Coalition.
  • For our New York clients and friends, in the farming community, Farm Bureau of New York is pressing the state legislature for an investment tax credit that would reimburse farmers for their expenses on items that are considered an investment in their business, such as construction supplies, machinery and new technology. The credits are intended to support the efforts of young farmers in particular.
  • If you are a food business subject to regulation by the FDA, you might notice an increase in FDA inspections in 2016. That is because the FDA issued a press release outlining its $4.9 billion budget request for FY 2016. The rationale for the request is to implement the Food Safety Modernization Act. According to the press release, a portion of this budget will be earmarked for the hiring and training of new inspectors.
  • In 2015, certain restaurants will have to comply with FDA guidelines on nutrition labeling. A recent study has indicated that affluent customers are more likely to utilize the kind of information required by the regulations.
  • Natural Products Insider advises supplement manufacturers to have a robust game plan to defend against class-action lawsuits. They recommend manufacturers perform label review by an experienced attorney as part of the risk mitigation strategy. Good advice for food manufacturers as well, and label review is one of our core services.
  • Breyer Ice Cream announced it will no longer be using milk from cows given rBST, recombinant Bovine Growth hormone.
  • D.C. Circuit Court of Appeals agreed with a previous finding of the Federal Trade Commission that POM Wonderful made deceptive claims in its advertising.

Food Labeling Compliance: Why Due Diligence Matters

July 30, 2012

Food manufacturers need to be vert careful about the words they use on their products. Last week the New York Times ran a story on a class action lawsuit initiated by a pair of California consumers against General Mills, who are seeking to force the manufacturer to justify some of its marketing and labeling claims. The civil complaint, underwritten by consumer advocacy group Center For Science in the Public Interest, takes issue with General Mills’ repetitive use of the phrase “natural” when marketing a product with ingredients like high fructose corn syrup, maltodextrin, and high maltose corn syrup.

On the company’s website, Nature Valley’s publicity stills are indeed full of affluent, healthy looking people hiking and mountain-biking through Thomas Cole paintings. I doubt hikers go to such extremes to eat a sugary bar of dried oatmeal. The disingenuous use of pastoral imagery in food marketing is a seemingly ancient and pervasive practice. So how much BS like this can a food producer get away with? It is actually a much finer line than one would think.

A vast amount of language is regulated in food marketing. Just to name a few examples, breed-specific claims regulate the meat industry, health claims such as “milk reduces the risk of osteoporosis” are regulated by the FDA, and the National Organic Program regulates the use of not just the organic seal of the USDA, but also of the use of the word “organic” standing alone. Almost any special distinguishing characteristics of a food label require some level of compliance review.

Third party lawsuits by public interest groups are not the only thing food producers need to worry about, either. Under the new Food Safety Modernization Act, the FDA has the power to mandate product recalls for mislabeling and misbranding, not just for food safety concerns. Any institutional buyer, like a grocery chain or major distributor, will as a condition of purchase require the manufacturer to indemnify and hold it harmless in the event of a product recall for reason of mislabeling or misbranding.

There are thus a multitude of reasons why a label should be designed to be beyond reproach. Any errors, or even any unjustifiable “puffery” (term of art for slick marketing) can be a source of serious financial loss. The label is how producers interface with their buyers, and distinguishing themselves from competitors begins there. By all means, they are free to pile on the characteristics that make their product unique, they just need to be aware that there are limits to what terms can be used in product marketing – unanticipated compliance costs can come from a variety of directions.