Consumer perception key in simple label claims

by Jeff Gelski
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CHICAGO — How consumers perceive a product with a simple label may cause legal issues for food and beverage companies, even if the companies have followed government regulations, said Sarah Roller, a partner with Kelley Dry & Warren LLP, Washington. A standing-room-only crowd of about 300 people heard Ms. Roller speak at a session focusing on simple food labels, also called “clean” labels, and sustainability July 18 at I.F.T. 10, the Institute of Food Technologists’ annual meeting and food exposition going on in Chicago.

Ms. Roller said liability risk may come if a gap exists between the consumers’ perspective of a product and the company’s perspective.

“As a lawyer I’m looking to limit those gaps,” she said.

The term “clean” food was coined in the mid 1990s, she said. The term has no connection to dirty or spoiled food but rather to being the opposite of “non-food,” or food with substances that devalue or dilute it, she said.

“The term ‘clean’ has really picked up steam in about the last 18 months,” she said.

Companies seeking to offer products with simple or “clean” labels first should make certain they meet Food and Drug Administration and U.S. Department of Agriculture regulations.

“But don’t end there,” Ms. Roller said.

Promotional claims should be accurate and substantiated and not misleading. A reasonable consumer in a company’s target market should not be misled into buying a product that he or she thought was something else.

“And by the way, that reasonable consumer might be the one that sues you,” Ms. Roller said.

The ingredient list should name ingredients by their common or usual names, which leads to many judgment calls, Ms. Roller said.

Colors cause problems because differences exist between artificial colors and foods that are colored artificially. Red No. 40 is an artificial or synthetic color, for example. Beet juice is non-synthetic, but if it is used to color pink lemonade, that product cannot be listed as natural. That case would be an example of a food that is colored artificially. However, pink grapefruit that is influenced in color by grapefruit is natural.

Ms. Roller gave two examples of legal actions involving simple claims. For one, the U.S. Department of Agriculture once asked Tyson Foods, Inc. to change the promotion “raised without antibiotics.” For another, the Snapple brand once faced a consumer lawsuit for promoting a product that contained high-fructose corn syrup as “all natural.” The Food and Drug Administration has since ruled that HFCS may be called natural when a common processing technique is used.

Ms. Roller added companies should be aware differences exist between federal and state regulations and that legal representation to defend claims may be expensive, even when a company has a strong case.

Douglas A. Balentine, director of nutrition sciences for Unilever Americas, Englewood Cliffs, N.J., also spoke at the July 18 session. He said he sees a trend developing where removing preservatives to create a product with a simple label brings about a need for more sodium.

Dr. Balentine gave an example of Unilever’s Brummel & Brown yogurt brand. Unilever wanted the product to meet the requirements for entry into Whole Foods stores, but that action required taking out preservatives and then increasing the sodium content by 20% to 30%.

“Do you take out a very small amount of preservatives that is making it stable and keeping down sodium content?” he said.
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