Managing Legal Risk, Q&A with Sarah Brew

Food companies face growing litigation risks around labeling, ingredient claims and marketing practices, making clear, substantiated and carefully defined product messaging more important than ever.

By: Erin McCarthy, Manager, Government Relations & Regulatory Affairs, FMI

For those in the industry, food is always center stage – companies spend their days adapting and evolving to meet changing consumer expectations. However, over the course of the last year, we’ve seen food spotlighted by plaintiff lawyers, state regulators, and even consumers themselves. To better understand how companies can manage increased litigation and minimize future risks in their own operations, I sat down with Sarah Brew, Partner at Faegre Drinker and one of the country’s preeminent food lawyers.  

How would you describe the current litigation environment? What are the biggest changes you’ve seen in recent years? 

The litigation environment has never been more challenging for food companies. Consumer fraud class actions are continuing to target food labels as false and misleading– ranging from “no artificial” claims, to the types and amounts of ingredients, to nutrient content and health claims.  At the same time, we’re seeing more mass tort-like personal injury cases, including heavy metals in baby food and, in the past year, the so-called ultra-processed food cases. In other words, plaintiffs’ lawyers are looking at food more closely than ever - both what’s in it and what appears (or not) on the labels. 

What are some top things companies should consider when looking to lower litigation risks?  

Careful review of food labels and marketing materials is the first line of defense.  That means looking at a label like a plaintiff’s lawyer.  Are there violations of the labeling regulations? Are the claims adequately substantiated? Are there undefined terms like “sustainable” or “nothing artificial” that consumers could interpret in potentially misleading ways? Are the labels using words or phrases just because they are the latest marketing trend?  We encourage companies to keep labels simple, use clear factual statements and terms, and to define or qualify them if needed.  A good example is “GLP-1 friendly.” It’s a popular claim appearing on all kinds of products. But it could mean different things to different consumers, so the label should specifically define or limit the term to what it means for that specific food – is it high fiber, high protein, nutrient dense? And if so, how many grams per serving? 

How do federal level actions, or lack of actions, impact litigation trends?  

Federal action that results in clear rules and regulations can be helpful.  For instance, because FDA defines “healthy,” companies know exactly when they can use the term on a label, and if they follow the rule, a lawsuit claiming that the food is not healthy would be preempted. But when regulators delay or decline to define term, like “natural,” it creates risk for companies to use those terms. Federal policy statements, even if short of formal rulemaking, can also create a litigation-friendly environment, as we are seeing now with litigation focusing on so-called ultra-processed foods. Those cases attempt to tie various health outcomes to the processing and certain ingredients in individual foods, including ingredients getting increased negative attention in recent years like artificial flavors and colors, rather than the caloric and nutritional qualities of foods as part of a total diet.    

Join us at the 2026 Legal, Regulatory & Compliance Conference on July 19-21 in Portland, Maine to hear the most current insights on the regulatory environment from Sarah Brew during her session. 

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