Issues in Food Marketing

November 12, 2020

Marketing Law Conference attendees: Scroll down for CLE materials

A panel of lawyers examined a number of legal cases with ramifications for food producers and retailers who are grappling with the consequences of the COVID-19 pandemic.

A panel of lawyers reviewed some of the legal issues that have emerged in response to the COVID-19 outbreak. The topics they covered included:

  • COVID-19 and food labels
  • COVID-19, the food supply chain, and the law
  • Fraudulent COVID-19 cures
  • Issues of alleged mislabeling

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COVID-19 and Food Labels

Early on in the pandemic, bare grocery shelves could be a common sight. One reason for the absence of goods was disruptions to supply chains. Many producers lost access to the ingredients they were accustomed to using. As one way of helping address this issue for producers, the FDA in May of 2020 relaxed some labeling requirements, allowing producers to forego changes to their labels when only minor adjustments to their formulations were made. This latitude was accompanied by a few stipulations:

  • If changes to the formulation were not to be indicated on the labelling, those changes couldn’t affect issues of health and safety. If an allergen was introduced to the product, for instance, that change still had to be noted.
  • A producer could not begin omitting a “characteristic” ingredient from its formulation or an ingredient that was indicated in the name of the product.

COVID-19, the Food Supply Chain, and the Law

As the pandemic proceeded, courts took action to protect food safety and the food supply chain — though workers’ appeals for protection were not always heeded, as indicated by a few court cases.

  • Castillo v. Whitmer: In this case, agricultural workers and business owners challenged a Michigan regulation that imposed COVID testing requirements. The court, however, held that they must comply, in part, to protect the food supply chain.
  • Rural Community Workers Alliance v. Smithfield Foods Inc.: A worker advocacy group claimed in this case that workers were not being adequately protected against COVID by the employers. A motion to dismiss was granted to the defendant.

Fraudulent COVID-19 Cures

The courts have been busy prosecuting those who falsely claim to offer treatments for COVID-19.

  • Morningside Church Inc. v. Rutledge: The televangelist Jim Bakker and his church filed a lawsuit against public health officials in an attempt to avoid responding to a civil investigative demand over their sale of a “Silver Solution” that they claimed was a treatment for COVID. The court dismissed the claim, noting, in the process, that the need to protect the public from fraudulent claims was of paramount importance.
  • FTC v. Ching: The court ruled against a defendant who claimed that his supplement consisting mainly of Vitamin C and herbal extracts would prevent and treat COVID-19.
  • U.S. v. Genesis II Church of Health and Healing: The court ruled in favor of the government in its case against a church selling what was in effect an industrial bleach as a treatment for COVID.

Issues of Alleged Mislabeling

Even apart from COVID-related issues, the courts have had their hands full. A number of cases have been brought against products whose names allegedly aren’t supported by the list of ingredients posted on the packaging. In Rosenfeld v. Trader Joe’s Company, a putative class action alleged that the plaintiff’s “12-grain crackers” contained so much enriched white flour that the name’s reference to “12-grain” was misleading. A temporary restraining order has been granted in the case. Vitort v. Kroger Company has a similar issue at its heart. In that case, the plaintiff alleges that the name of Kroger’s “Just Fruit” spreadable fruit product is belied by the amount fruit syrup, sweeteners, and other ingredients in it. That case is still being pursued.

CLE Materials

Source

"Issues in Food Marketing." Mary Ann Wymore, Officer at Greensfelder, Hemker & Gale, P.C.; Brandi Van Leeuwen, Senior Counsel at Meijer, Inc.; Gaëlle Saint-Jalmes, Counsel at Osborne Clarke LLP; Kate Eguchi, VP and Associate General Counsel, Privacy, Technology and Marketing, at Whole Foods Market, Inc. ANA Marketing Law Conference, 11/12/20.

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