The Legal Challenges with Food Marketing

Brittany Blackman
Mar 24, 2022

Much like the beauty industry, the health food sector has a contentious reputation surrounding the legality of certain food regulations…or lack thereof. The guidelines upheld by the FTC and the FDA are blurry at best, and the spread of misinformation is plaguing most media platforms. The influx of health influencers spreading pseudo-science, an already barely regulated system, and ethical nuances make it difficult to hold space in the food industry.

The Jargon

As the tides shift, consumer desires fluctuate. In today’s climate, sustainability, wellness, and transparency are non-negotiable to many consumers when making purchasing decisions. However, all of these necessities have become increasingly easier to manipulate with the right jargon. 

Think about the marketing on the packaging of the most popular products in the country. Cargill turkeys are sourced from “independent family farmers,” Sargento cheeses contain “no antibiotics” and Tyson uses “humane and environmentally responsible production” while handling chickens. They also claim to ensure that the workers have “a safe work environment.”

However, as the New York Times notes, many of these claims may not be what they seem. This notion is bolstered by a recent wave of litigation by advocacy groups looking to address what they describe as “a surge in deceptive marketing by food giants”. The misleading labels look to capitalize on consumers’ growing demands regarding eating clean, animal welfare, and sustainability, but without actually living up to a majority of these claims. 

According to the complaints, Cargill turkeys are actually produced by contract farmers. Contrary to the company’s claims, the farmers have no say in the treatment of the turkeys. Not to mention the farmers in question are underpaid - axing the ethically sourced claims that the company touts. Meanwhile, Tyson’s claims of “all-natural” chicken are discussed in a lawsuit filed with the FTC, their chicken is actually mass-produced in crowded sheds contaminated with antibiotic-resistant pathogens, and after slaughter, they are doused in chemical disinfectants. Natural production is nowhere to be found.

The federal complaint also targeted the company’s “safe work environment” claims, finding that by the end of 2021, roughly 40 Tyson processing plant employees had died of Covid-19 and 12,500 others had become infected, four times more cases than its biggest competitors.

Tyson countered that it complied with all labeling regulations, and was transparent about environmental, animal welfare, and workplace safety efforts. But those definitions are constantly changing, and defined differently from organization to organization, creating a nefarious loophole in labeling protocol that continues to plague the industry.

And that antibiotic-free Sargento cheese isn’t off the hook either. One of the two lawsuits against the company included lab tests that found small amounts of antibiotics.

According to a survey by the law firm Perkins Coie, class-action litigation against food and beverage companies hit a record in 2020, with 220 lawsuits filed, a leap from 45 a decade ago.

Sustainability Claims

Sustainability claims have also become more misleading than ever. With growing consumer interest in products and services that are environmentally safe, brands  are going to dishonest lengths to cash in. 

According to the Innova Consumer Survey 2020, six in ten global consumers are interested in learning more about where foods come from. Meeting today’s ethical, environmental and clean label consumer standards is a top priority. Additionally, a recent report by Ceres, a Boston-based nonprofit, says that two-thirds of consumers are willing to pay more for sustainable products, and that figure is even higher for millennials (73%) and Gen Z (72%). The dollar signs are there, all brands have to do is appeal to those consumers.

But with so much jargon like “clean labeling” and “plant-based”, floating around, it’s important to define what these demographics are looking for when making a purchase decision. Similar to the “clean beauty” movement, there’s little to no regulation in regards to defining these terms. The FTC has yet to define exactly what “clean”, “natural”, or “green” is in either industry. As a result, brands, retailers, influencers, and celebrities have defined it for themselves, creating an environment filled with fear-mongering and misinformation. However, the laws and regulations are so blurry and easy to embellish that it’s impossible to keep track of every false claim. 

In SUMO Heavy’s piece on food transparency, we discussed some of the first buzzy terms that mobilized the food transparency movement– like the elusive GMO. The Non-GMO Project defines GMOs as genetically modified organisms, living organisms whose genetic material has been artificially manipulated in a laboratory through genetic engineering. It breeds combinations of plant, animal, bacteria, and virus genes that do not occur in nature or through traditional crossbreeding methods. GMOs entered the public sphere on a large scale due to the infamous Chipotle controversies.

In 2015, the fast-casual company announced that they would be permanently eliminating GMOs from their products. However, the company was slapped with numerous lawsuits for years following their new GMO policy– the company wasn’t terribly honest about their true food sourcing. An ongoing suit was settled in 2019. 

Chipotle paid $6.5 million to settle the suits that alleged that the chain falsely advertised that its food is free of genetically modified ingredients.

The settlement entitles anyone who purchased food from any Chipotle unit in the U.S. from April 27, 2015, until June 30, 2016, to $2 back on each qualifying purchase, with the ability to claim up to five qualifying purchases without documentation. Customers with proof of purchase were to be awarded up to $20 for 10 qualifying purchases during that period. 

In 2020, Ben & Jerry’s had to stop describing the cows that provide the milk for their ice cream as “happy” after the company was sued by an advocacy group. More recently, the N.A.D. recommended that Butterball modify or drop the phrase “farmers humanely raise our turkeys every day” from its labels, and you can take a guess why. This only scratches the surface of legal issues regarding food labeling. 

eCommerce Contributing to the Issue

Having a notable online presence is one of the major challenges facing the food and beverage industry right now. Consumers are more tech-savvy and socially informed than ever, thanks to the abundance of information at all consumers’ fingertips. The accessibility to so many products from eCommerce sites, and the sheer amount of product on Amazon alone is a larger can of worms that creates even more opportunities for dishonest labeling to slip through the cracks. Industries, like appliances, electronics, textiles, and other domestic products have already established a major presence online and have been facing their own regulatory issues.

Wholesalers and retail companies have invested billions in grocery eCommerce, in order to overcome issues with physical grocery stores. Unfortunately, that hasn’t stopped issues with food labeling and counterfeit products on A report from the company reveals it blocked 10 billion attempted counterfeit listings in 2020—up from 6 billion from the year before—and destroyed 2 million fake goods in its warehouses alone.

A sweeping Wall Street Journal investigation shows that Amazon has listed “thousands of banned, unsafe, or mislabeled products,” from dangerous children’s products to electronics with fake certifications. The Verge also found that the eComm giant’s listings for its own line of goods are “getting hijacked by impostor sellers.” Additionally, CNBC found that Amazon has shipped expired foods labeled falsely (including baby formula?) to unsuspecting consumers, attributing the issue to an inability to monitor something even as fundamental as an expiration date. 

But even offline, Amazon is one of the main culprits behind dangerous food mislabeling. In 2020, the U.S. (FDA) issued a warning letter to Inc's Whole Foods Market for not labeling some products for the presence of food allergens, which led to a series of product recalls.

The supermarket chain had to recall over 30 food products at that time as the presence of major food allergens was not listed on product labels. It should go without saying how irresponsible and deadly this could be. 

What Can be Done? 

As more brands emerge online selling their own share of products, stricter regulations and more eyes could be crucial in cracking down on the legal challenges facing the food and beverage industry. Without a shakeup in the legal processes by orgs like the FTC and FDA, even more, insidious mislabeling could pop up at any time. 

There is some leeway. One of the newest concepts in food transparency is single-origin verified labeling. It’s a leap up from GMO and fair trade labeling. It’s one label that shows the consumer exactly where the product came from. It’s too early to say whether the idea will spread, as there is just one company that’s testing the concept out. But again, these changes must be implemented on a much larger scale to make a true difference, and only time will tell whether or not we’ll reach that point anytime soon. 

Photo by Franki Chamakion Unsplash

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