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Levick Daily. Thoughts. Perspectives. Insights.


Stefanie Fogel on What’s Next for Food Labeling Issues in 2013

Gene Grabowski

After a year that saw labeling issues come to the forefront of the food safety conversation, I sat down with DLA Piper trial lawyer Stefanie Fogel to get her take on how manufacturers, producers, and retailers can expect the debate to evolve in 2013.
Ms. Fogel is widely recognized as one of the nation’s foremost authorities on food safety issues, representing national and multinational companies on matters of commercial litigation, product liability, and regulatory and code compliance. As a staunch industry advocate and a legal professional who has successfully defended numerous cases across the United States, she shared her insights on what’s next for food labeling issues with LEVICK Daily.
What should the food and beverage industry infer from the fact that California’s Proposition 37 failed last November? Did the vote discourage or further embolden activists seeking to impose more stringent labeling rules for products that contain genetically-enhanced ingredients?
Stefanie Fogel: I think the fact that Prop 37 failed is not an indication that the issue is going away. In fact, the reality is quite the opposite. We’re seeing a great deal of activity from a plaintiffs’ bar that sees the potential for these issues to evolve into the next tobacco litigation – and they will continue to hammer on food manufacturers to provide the public with as much information as possible about the ingredients their products contain.
As Americans consume more genetically-modified ingredients and import more food products from around the world, there will only be more opportunities for activists and the plaintiffs’ bar to demand levels of transparency that create significant burdens for manufacturers while accomplishing little to nothing in terms of safety. They want to see the U.S. Food and Drug Administration (FDA) treat food with the same levels of scrutiny traditionally reserved drugs. Depending on how successful their efforts are, we may see the FDA Inspector General get involved before long. If that happens, the largely cooperative working relationship between industry and regulators could become more contentious.
What impact has all of this had on public attitudes about food labeling issues?
Stefanie Fogel: Right now, the public’s reaction can best be described as diverse. Some are concerned about the fact that they might not know what’s in the foods they are eating. Others better understand the benefits of genetically-modified foods and accept that they have been safely consumed in the U.S. for years. The high-profile debates surrounding energy drinks, Greek yogurt, and what the term “natural” really means have had some impact on consumer attitudes – and as more products come under the same scrutiny, there may be a corresponding rise in consumer anxiety.
As such, this isn’t an issue that industry can simply ignore and hope will go away. It’s up to food companies themselves to engage the public and clearly lay out the reasons why they should feel adequately protected by the rules currently in place.
How do you see the private sector initiating that dialogue? Are there other steps companies will – or should – take in 2013 to ensure that consumer confidence isn’t eroded any further?
Stefanie Fogel: First and foremost, I think that we will see more companies taking steps to insulate themselves from litigation. They want the public to understand that the food on its tables is perfectly safe and promotes good health. They also understand that uncertainty is their worst enemy – and, as such, the more clarity they can bring to these issues, the better.
So, I think that we will see the industry come together to identify the vagaries of current rules and labeling practices and work to clearly define what certain marketing terms really mean. By establishing standards and sticking to them, companies will provide themselves with the cover they need – both in the courtroom and the Court of Public Opinion.
Gene Grabowski is an Executive Vice President at LEVICK and a contributing author to LEVICK Daily.

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