- Redefining "Healthy." With the
change in administration and a new incoming leader of the
Department of Health and Human Services, the FDA and other agencies
under the HHS are likely to undergo significant changes. It appears
alternatives to traditional drugs and a renewed focus on organic
and healthy food will be high priorities for the incoming head of
HHS. The FDA issued a Final Rule in December 2024 revising the
current definition of "healthy" when referencing
ingredients and food. The new definition requires that an
ingredient or food come from one of a set of identified food groups
and contain below-established limits for saturated fat, sodium, and
added sugars. Notably, water, coffee, and tea, without added
ingredients, can be deemed "healthy," which due to some
of the previous criteria, had fallen short of the definition.
- Liquor Licensing & Distribution
Regulations. In 2025, there will be a continued effort in
the United States to modernize liquor license laws – a
process that in some ways has been in progress for nearly 100
years, since the end of Prohibition. These outdated laws could
never have anticipated the rise of social media influencers and
celebrity-endorsed alcohol brands and how that would interact with
"tied-house laws" that prevent manufacturers from
influencing retailers and vice-versa. State liquor authorities have
begun to listen and respond to complaints that the licensing
process is too challenging, but community groups and state
legislators have not necessarily provided the tools needed to
improve the experience of prospective retailers seeking
licenses.
- Working Through Ninth Circuit Class
Action Confusion. In 2024, the Ninth Circuit issued
several conflicting decisions that will impact class action cases
involving packaged goods in 2025. The first issue involves how a
reasonable consumer resolves ambiguous advertising by reviewing the
back panel of product packaging. In 2023, the Ninth Circuit held
that when "a front label is ambiguous, the ambiguity can be
resolved by reference to the back label." McGinity v.
Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023). This
year, a different panel on the Ninth Circuit limited
McGinity, narrowing what can be considered ambiguous:
"a front label is ambiguous if reasonable consumers would
necessarily require more information before they could reasonably
conclude that the front label was making a specific
representation." Whiteside v. Kimberly Clark Corp.,
108 F.4th 771 (9th Cir. 2024). Second, the Ninth Circuit permitted
private plaintiffs to enforce the Food, Drug, and Cosmetic Act
(FDCA) against foods and gutted traditional implied preemption. In
Davidson v. Sprout Foods, Inc., a panel on the court held
that consumer plaintiffs were not preempted from pursuing technical
violations of the FDCA using California's Sherman Law. 106
F.4th 842 (9th Cir. 2024). This decision is seemingly at odds with
Nexus Pharms., Inc. v. Central Admixture Pharmacy Servs.,
Inc., which held that a plaintiff cannot use the Sherman Law
to avoid FDCA implied preemption in the drug context. 48 F.4th 1040
(9th Cir. 2022).
- Supply Chain and EPR. The Trump administration
plans to bring additional tariffs to food and beverage products
imported into the United States. The tariffs on products of China
from the first Trump administration are still in place and could be
increased by 10%. President Trump has stated that he will impose an
additional 25% tariff on all products of Mexico and China unless
those countries take action on the migrant and drug crises. For
importers of food and beverage products, particularly from Canada
and Mexico, points along the supply chains will be more expensive.
Importers are advised to increase visibility into their supply
chains and determine the potential impact of the proposals on their
bottom line. Importers should also consider sourcing and duty
mitigation strategies to ease any duty burden. Finally, the
proliferation of Extended Producer Responsibility legislation,
which charges fees to producers of consumer packaging and mandates
recyclability standards, will likewise increase supply chain
expenses and compliance challenges in 2025 and beyond.
- PFAS and Other Contaminant Litigation. PFAS class action claims continue to plague the food and beverage industry with more plaintiffs' firms looking to bring PFAS cases in 2025 and new state regulations coming into effect. To date, PFAS class actions have focused on products where the main ingredient is water (fruit juices and energy drinks), snacks, and packaging. Many of these cases report PFAS levels below the limits of quantification. Challenges to standing have been largely successful, but plaintiffs' counsel continue to adapt and modify their complaints to get around these rulings. Other contaminant claims have also proliferated, ranging from class actions premised on heavy metals to Proposition 65 claims on lead, cadmium, PFAS, and other listed chemicals. In 2025, expect to see more contaminant class action claims against these products, but also an even broader product mix of cases over PFAS in food and beverage packaging.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
