- 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 These outdated laws could never have anticipated the rise of social media influencers and celebrity-endorsed alcohol brands and how that would interact with “tied-house laws”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.
About Greenberg Traurig’s Food, Beverage & Agribusiness Practice: GT’s Global Food & Beverage Group leverages its deep experience representing some of the most significant participants in the food, beverage, dietary supplement, and products industries. The team is ranked in Chambers & Partners and was named a Law360 “Food & Beverage Practice Group of the Year.” They represent clients on a broad range of matters in the sector, including those involving corporate, regulatory, environmental, finance, intellectual property, labor and employment, litigation, real estate, restructuring, and tax matters.