Denver-based attorney Justin Prochnow, a shareholder in the firm Greenberg Traurig, will be one of the presenters in a session on class action trends at the upcoming Food Law Conference that will take place Monday and Tuesday in Chicago. In presaging his talk, Prochnow said that litigation about what the term “natural” means gave many of these plaintiffs firms their start, but they haven’t stopped there.
HFCS gave birth to an industry
High profile lawsuits against Ben and Jerry's and 7Up about those brands’ use of HFCS (high fructose corn syrup) and whether that ingredient could be considered “natural” opened the curtain for these type of lawsuits. And they continue to be a facet of the class action landscape, Prochnow said.
“I’m starting the talk off with a conversation about natural, even though most of our clients don’t try to use that claim any more,” he said.
“These kind of suits have morphed over the years. They started with HFCS and went on into suits attacking cocoa processed with alkali and then attacking GMO ingredients,” Prochnow said.
Attacking the processing steps
This is perhaps the aspect of the situation that drives most pointedly at the dietary supplements industry. Prochnow said class action filers are now drilling down into the provenance of ingredients to see if vulnerabilities can be found that could help them win a settlement.
“A lot of what might be thought of as ‘healthy’ ingredients have become targets,” he said. “Things like citric acid, or stevia. They have been attacked because the processing steps might not be seen as natural.”
Some more cynical observers of the food and dietary supplement industries would say that in the absence of federal regulatory action to define what natural means, the present situation amounts to regulation by litigation. Prochnow said there isn’t much precedential value to these suits, since few of these cases get to the point where a judge might write an opinion. What they have done mostly is to encourage companies to steer clear of the claims altogether, as many of his clients have done.
“A lot of these suits aren’t filed with the expectation that the plaintiffs might win. They are just trying to get a settlement,” Prochnow said.
Specificity is the best defense
Broadly speaking, Prochnow said the best defense against these type of suits is to be as specific and forthright as possible in the claims that go on the label. The raw material might be natural, but what if the ingredient then went through some processing steps that, while uncontroversial to a food chemist, could be spun to seem problematical to a consumer? Don’t shy away from that, Prochnow advised.
“For example, to defend against the processing claims, a company might say, ‘made with naturally sourced ingredients,’” Prochnow said.
Slack fill, sugar claims
Prochnow said there are a couple of areas that might see more class action lawsuits filed in the future. “No sugar added” claims is one, because there is a gray area surrounding the use of fruit concentrates or extracts as sweeteners. If the concentrate itself was made with added sugar, it could complicate using that claim in the finished product, Prochnow said.
Another growth area for lawsuits is in the amount of slack fill used in packaging. There a number of legitimate reasons for not filling certain containers right to the brim. But consumers could claim to feel defrauded if they buy a package of snack food or open a tub of powdered protein to find that the package contains a significant amount of air as opposed to product, he said.