Proactively Assessing and Protecting from Class Action Lawsuits
Hello, It seems in recent years that the risk of class action, demand letters, and other legal battles have been a much greater risk to food companies than regulatory risks and more difficult to research. Cases like protein claims, PFAS, "natural" labeling, etc. Does anyone here have a great way to stay proactive when you don't have a large corporate regulatory/legal council? Looking for forums, newsletters, webinars, anything really to try and stay ahead of the lawyers......Thank you in advance.
well...........for pfas you should have a LOG from your suppliers which should be sufficient
as to the others, due diligence on your product(s) is required, and not just to keep the leeches away, but because it is what is required of you
read and understand the regulatory requirements
All those who have been "found" guilty i'm sure were flouting the rules to serve their own interests
As @scampi stated you are required to maintain compliance so you really should be putting the due diligence in and assessing your products and processing facilities to make sure all is squared away. I have been a part of 2 "ambulance chaser" lawsuits around California's Prop 65, both for lead counts, these are not fun by any means to go through and last for a long time even with a strong legal force behind it. Just read up on anything and everything regulatory wise to cover the rear end and apply accordingly. A good start is pull out what you can from webinars, newsletters sign ups, etc., these are helpful in providing some direction toward things as well.
I'm not in the US and we don't have as much civil litigation risk in the UK, however, I think from an outside point of view it's about good risk management (which goes beyond QFS so this should be led by a senior Director even if they're not a legal counsel.)
Not sure if you have this in the US too but the team normally compile (with the assistance of site if a large company) a risk register. This will often include:
- Health and safety risks
- Environmental risks
- Risks to the consumer
- Emerging risks in the marketplace
- External risks and threats locally
- Legislative risks
You then risk assess where you are now against each and form a plan to improve. By documenting it in this way you are proving that you're considering and mitigating (which normally helps insurance premiums, which you should also have.)
This isn't repeating HACCP but, you may decide to record a generic one around consumer risk but also some specific ones if you don't feel that you've mitigated them fully, for example around plasticisers or claims.
On the examples you give though, I would look to industry organisations in the US (sorry I don't know what they are) but build that into your horizon scanning for emerging threats. After all, that's what it's there for. Then if you can correct or mitigate immediately once one comes along, do it or record it in your risk register as something you're working on. You might already want to include in your risk register something along the lines of:
- Risk of emerging threats on plasticiser and maximum residue limits with changing legislation and consumer awareness.
Your mitigation should then be around looking ahead to any changes in guidance, law and consumer perception. Might be worth looking around the world as well. The EU are often early adopters of tightening MRLs sometimes beyond where required in my view but they take a very precautionary approach. Not saying the US will follow but it's something which could become a consumer pressure issue later. I'd also use your suppliers for info and involve them in that step, they can often tell you what discussions are taking place long before they're made public. It can then help you see which are likely to become pressure issues in the future. For example BPA was rumbling around for years in consumer circles before legislation finally changed.
On claims, I would think you should have this down already. If not, then I'd get it down! This should be part of your VACCP or authenticity plan. You should be listing what product claims you make and how they were originally validated, how they're controlled and monitored on your lines (e.g. weight checking into pack for protein) and then some kind of verification checks (e.g. you might send off a sample of products for verification of protein content or full nutritional on a periodic basis which you've documented.)
"Natural" is thornier in the UK and EU anyway. The FSA put out guidance on the use of it in 2002 but a cereal bar company, believing themselves to be following that guidance were ruled against by the ASA (UK advertising standards authority) as it was containing cocoa powder and sunflower oil as "natural". That's where you probably do need a bit of advice from an industry body or may need to pay for one off legal advice if you're putting that claim on a pack if US laws are as strict. You rarely see it in the UK anymore as it used to be widely abused. It looks as though guidelines on this will be (finally) updated soon:
If you sell on-line, watch the state regulations. You may want to deny people from certain states to purchase your product. (Put a caveat on your website or product description).
I've been part of one lawsuit. A small company in the Midwest that sold products on-line. We got sued b/c of California's Prop 65. It was eventually dropped since the amount sold in California was minuscule.
Hello, I understand risk assessments, regulations, and all of the other responsibilities required by FSQA. I was looking for specific websites, tools, communities that would support this exhausting endeavor to stay ahead of the "blood sucking lawyers". For others in this same place I got the resources below from a colleague - so I guess I solved my own inquiry.
https://truthinadvertising.org/
https://www.courthousenews.com/ (not as useful, but sometimes has them)
You probably already do, but make sure you subscribe to FDA/USDA alerts. Which ones will depend on what you want to look for. Personally, I'm subbed to recalls, import alerts, FDA general and a few other. Scanning these a few times a week will give you an idea of any new trends.
There are also a few email lists run by food safety type sites (IFSQN has one). If you find a good email list focusing on food manufacturing litigation let us know. Most of the ones I've subbed to end up just filling my inbox with advertising spam.
Hello, I understand risk assessments, regulations, and all of the other responsibilities required by FSQA. I was looking for specific websites, tools, communities that would support this exhausting endeavor to stay ahead of the "blood sucking lawyers". For others in this same place I got the resources below from a colleague - so I guess I solved my own inquiry.
https://truthinadvertising.org/
https://www.courthousenews.com/ (not as useful, but sometimes has them)
How does subscribing to those help you prevent a lawsuit exactly????
It does not prevent. It allows you to understand what is trending. Some companies are small and are targets for litigation they won't survive so if they can anticipate what the current trend is they can take targeted preventive actions to protect themselves. Not every company has even a dedicated FSQA person much less an attorney.
I do subscribe to all regulatory alerts across all agencies and international. Regulatory compliance does not equal class action lawsuit absolution.
Regulatory compliance does not equal class action lawsuit absolution.
Unfortunately, I don't think anything equals class action lawsuit absolution. But you can mitigate risk associated with litigation by having a documented evaluation of current industry regulatory trends. As a medium manufacturer I've found good (great, really) results working with my insurance provider on mitigating risks like that. Your insurance wants you to be involved in a lawsuit or recall even less than you do.
Ah, insurance companies!!! That is a great, out of the box, suggestion. Thank you. I will suggest that as well to my folks.
Hi quality food management,
Congratuations on your proactiveness.
I've found good updates on trending litigation here - really interesting blog:
You're already probably aware of Bill Marler - he's an attorney who works on food cases, but with a focus on illnesses from foodborne pathogens, so maybe not as relevant to your enquiry. You can get his newsletters by signing up here: Subscribe | Marler Blog
Where litigation is related to misleading claims, or alleged fraud in food I cover it in my newsletter (link in my signature). For example there was a recent one about Vanilla icecream where the company wasn't using natural vanilla and the class action alleged that consumers had been misled by the company - that's the type of 'fraud' I cover when it comes to US litigation.
The most famous one I can think of was a few years ago about Subway tuna sandwiches containing no tuna DNA (it turned out to be a testing problem rather than an authenticity problem, but Subway was put through the wringer for months/years) - I wrote about that from a 'food fraud or not?' perspective.
I also publish regular articles about trends in food safety, like the increasing awareness and focus on risks posed by PFAS, microplastics, BPA, non-nutritive sweeteners, glyphosate etc. which can give food professionals a heads up on what consumers might be worried about.
Ah, insurance companies!!! That is a great, out of the box, suggestion. Thank you. I will suggest that as well to my folks.
Absolutely. I'm not sure if you read my comment above but the drive for risk registers and risk mitigation in the UK is all driven from insurance companies and by doing some of these activities to mitigate risk, you often reduce your premiums.
This is a very generic guide on how to create a risk register and what it is:
Risk Register: How to Build One + Examples | Drata
I think it's worth thinking about it in the round not just from a food safety point of view because risk in one area often impacts another. So for example, even if you decide the health and safety risk is the one you want to mitigate the most, you wouldn't document this in your risk register but having worked in an organisation who had a fatality, suddenly all of the resource went into EHS (once the horse had bolted of course). ANY risk becoming reality in your business then becomes like a load of 8 year olds playing football (soccer) on a pitch where all 11 of a team gravitate towards the ball at once.