Who are You Calling a Liar? The Case for Early Substantiation of Labeling Claims

“I’m not a liar!” by Tristan Schmurr is licensed under CC BY 2.0

Food manufacturers know that they must substantiate their label claims.  However, when they develop this substantiation may vary.  The prudent food manufacturer will develop a claims substantiation file before its puts any claims out into the marketplace to ensure that they are supported by credible evidence, whether it be product testing, market research, scientific studies or literature, or supplier data and/or specification sheets.  This practice is critical, even more so when one is making a “natural” claim about a product as such claims typically garner greater scrutiny from both regulators and class action attorneys. 

Last year, I was asked to comment on a lawsuit brought against the National Beverage Corp regarding its LaCroix sparkling water products.  That lawsuit alleged that LaCroix was falsely marketed as 100% natural even though the products allegedly contained artificial or synthetic additives.  While the National Beverage Corp denied these allegations, it has been hit with a second suit in New York.  Notably, the company is decrying the plaintiffs as “professional liars,” but just as notable is that National Beverage Corp appears to have worked with an accredited lab to develop necessary substantiation after the first lawsuit.  Based upon these results, as well as “confirming supplier certifications,” National Beverage Corp has vigorously decried the more recent New York lawsuit.

Frustrating as it can be to refute claims that one might deem baseless, a good offense is the best defense.  While I do not represent National Beverage Corp, my advice to any food manufacturer is to develop solid substantiation before you are ever asked to prove your claim(s).  Litigation is not a cost-effective claim substantiation strategy.  For more on my thoughts in this regard, check out the most recent article from FoodNavigator-USA about the LaCroix lawsuits. 

Published by Bill Acevedo

I am the Chair of Wendel Rosen LLP's Green Business Practice Group, and I am the Co-Chair of my firm's Food and Beverage Group. My practice focuses on manufacturing and food, dietary supplement and cosmetic companies. I provide outside general counsel services to my clients, which include: entity formation, business and legal advice on proposed business transactions, general contract negotiation and drafting, brand and licensing protection, corporate governance, capital raises, and M&A transactions. Additionally, I assist my clients with labeling, advertising, and FDA regulatory compliance matters. In addition to my corporate transactional practice, I handle all manner of business litigation, such as labeling/advertising claims, contractual disputes, trade secret matters, partnership disputes, product liability claims, director and officer liability, and unfair business practices claims.

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