Environmental Partner, Sedina Banks, Featured in L.A. Times Food & Beverage Roundtable

May 6, 2024Media Mention
Los Angeles Times B2B Publishing

Sedina Banks, Environmental Partner, shared her expertise on the latest trends in the food and beverage industry. Below are excerpts from the L.A. Times B2B Publishing feature:

Q: Are there any new regulatory issues that food and beverage companies need to be aware of in 2024?

We can expect front-of-package nutrition labeling (FOP labeling) to be a major focus in 2024. The Food and Drug Administration (FDA) is increasingly focused on prioritizing nutrition initiatives to ensure consumers have access to healthier foods and have the necessary information to make informed food decisions. These initiatives include FOP labeling. Per the FDA, FOP labeling would complement the already required Nutrition Facts label by displaying “simplified, at-a-glance nutrition information,” allowing consumers to quickly and easily make informed food choices. The FDA is engaged in consumer research and stakeholder feedback on FOP labeling. In March, the FDA Commissioner previewed some FOP labeling prototypes.

Q: Per- and polyfluoroalkyl substances (PFAS) have been the subject of discussion surrounding regulations prohibiting the use of intentionally added PFAS in food packaging. What should companies be aware of?

Known as “forever chemicals,” PFAS are human-made chemicals that have been used for decades and are found in many different commercial, industry and consumer products. PFAS have recently been the subject of federal and state regulation. For example, the United States Environmental Protection Agency (EPA) recently designated two widely used PFAS compounds, PFOA and PFOS, as “hazardous substances.” EPA also announced enforceable drinking water standards for six PFAS. In California, certain PFAS compounds are included on the list of California Proposition 65 chemicals. Commencing on January 1, 2023, California prohibited the distribution, selling or offering for sale any food packaging containing PFAS. We are seeing an uptick in plaintiffs’ actions based on the presence of PFAS in food packaging and products. Companies should be aware of the new PFAS regulatory requirements and undertake internal audits to ensure compliance.

Q: When it comes to sustainability and environmental claims, are more changes and revisions to FTC guidance in store?

The FTC’s Green Guides provide companies with guidance on compliant green marketing claims to help avoid so-called “greenwashing.” Greenwashing occurs when a company overstates the environmental benefits of its practices or products. The Green Guides discuss general principles that apply to all environmental marketing claims and guidance on how companies can qualify their claims to avoid consumer deception. First issued in 1992, the FTC periodically revises the Green Guides to address new issues and clarify existing guidance. Because the last update was over a decade ago, the FTC is currently updating the Green Guides. Among other updates, the FTC is considering issuing additional guidance on the term “sustainability” and other commonly used green marketing terms. Companies should be aware of these proposed revisions and make sure that they are relying on the most current version of the Green Guides.

Q: What should companies be aware of to avoid the risk of “greenwashing” claims?

Companies must be mindful to ensure that their green marketing claims are not “greenwashing,” which can expose companies to private and public lawsuits and reputational damage. Some tips to avoid greenwashing liability include ensuring that green marketing claims are factually supported. For example, companies cannot claim that their packaging is recyclable if the facts do not support the claim. Companies must also ensure the claims comply with both federal and state law. California, for example, has more stringent green marketing requirements compared to the federal requirements. There may also be product-specific green marketing requirements. Finally, companies should periodically review and reassess their green marketing claims to confirm continued compliance. The law in this area is constantly evolving. Green marketing claims that were permissible in the past, may no longer be legal.

Q: What is the greatest opportunity you are currently seeing for the industry?

The greatest opportunity stems from adapting to changing consumer preferences. Established brands are increasingly venturing into new product lines that include non-dairy, gluten-free, plant-based and non-alcoholic options. Alcohol brands are launching non-alcoholic mixers, elixirs and alternatives to traditional drinks, like beer. These products cater to non-drinkers but are versatile enough to appeal to those who consume alcohol. As companies diversify their offerings, many are restructuring their operations to support these new lines, often necessitating corporate reorganization, investment in intellectual property, significant capital raises and fundraising.

Q: What are some of the biggest mistakes that food and beverage companies make?

One of the biggest mistakes that food and beverage companies make from a regulatory compliance perspective is failing to stay apprised of the constantly changing regulatory landscape applicable to their products. Food and beverage companies need to be aware of federal and state requirements applicable to labeling, product composition and marketing statements. Food and beverage companies should also be careful not to rely on their competitor’s practices to ensure regulatory compliance. I’ve seen even large, national companies run afoul of regulatory requirements. While it is helpful to be aware of your competitor’s practices, that knowledge should be a starting point and not an end-point in any compliance analysis.

*This roundtable was originally published in the Los Angeles Times and can be accessed here.