Most industry professionals are aware that a revised set of California Proposition 65 or “Prop. 65” regulations will take effect at the end of the month on August 30, 2018. Prop. 65 is a so-called right-to-know statute that, among other things, requires manufacturers and retailers to provide any California consumer with a “clear and reasonable” warning prior to exposure to a chemical identified on a list developed and maintained by a California agency. The revised Prop. 65 regulations pertain to the standard for providing consumers a “clear and reasonable” warning. The revised regulations can be found here and require warnings containing a greater level of specificity.
Americans are increasingly sensitive to the ingredients that go into the food that we eat. Recently, Congress passed a law requiring manufacturers to label or place QR codes on products containing or made from genetically modified organisms (“GMOs”). Now, consumer advocates have turned their attention to food products bearing the word “natural,” raising legal risks for all food manufacturers who label products with that term.
“Natural,” “green,” “sustainable,” “biodegradable,” – it seems like everywhere you look, from the big box stores to your local farmer’s market, products are being marketed for their environmental and healthful benefits. For a range of reasons, consumer demand for ecologically conscious or healthy products is exploding and the market is responding. The increasing demand for these goods has not gone unnoticed by federal regulators. The Federal Trade Commission (the “FTC”) has been closely monitoring the booming use of these terms in marketing and advertising materials. At the top of the marketing food chain is the term “organic,” which is tightly regulated and requires pre-certification from the U.S. Department of Agriculture. However, the majority of terms are not so stringently regulated. In fact, most terms fall within a gray area requiring no certification or verification prior to use. Such terms may appear beneficial to businesses given their low upfront investment and strong consumer demand, but use of such terms is increasingly exposing businesses to a landscape fraught with legal risk.