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FDA Non-Enforcement Is Not a Safe Harbor: Franco v. Chobani
FDA non-enforcement is not a safe harbor.
The Seventh Circuits decision in Franco v. Chobani just made that concrete.
Consumers now matter more than SEO, AEO, and GEO.
Wellness consumers, especially gut-health and GLP-1 consumers, are becoming extremely vocal, and they're affecting the bottom line.
Management, marketing teams, and buyers will increasingly have placebo marketing reviewed by legal counsel and insurers.
Credit to Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates for the analysis: https://lnkd.in/gcRB5qbm
What changes for brands: 1️⃣ Absolute words get riskier. Zero, free, only, and 100% will be read literally. Brands will either back them up exactly or soften them, for example 0g added sugar with a footnote.
2️⃣ Claims get specific and measurable. Vague benefit words will give way to numbers with a method and a source. Precise, research-backed facts are much harder to sue over than absolute words.
3️⃣ Every channel gets audited. Labels, websites, Amazon listings, social posts, and ads all count as marketing claims, and plaintiffs' lawyers search all of them.
4️⃣ Substantiation comes before the claim. Legal review and documented evidence come before a claim go live, not after a demand letter arrives.
5️⃣ Placebo marketing loses its cover. Words like clean, pure, and wellness-grade make people feel good without anything measurable behind them. That works until a consumer, a lab, or a plaintiff asks for the number.
Being comfortable with FDA and being exposed under state law are two separate questions.
How a reasonable consumer reads a claim is a factual question, and it's rarely settled at the start of a case.
We have watched this from the inside. Puroast Coffee has spent the last 18 months building exactly the verification infrastructure these changes will require.
The brands that built verification before the demand letter arrived are in a different position from the ones that didn't.
The window to be in the first group is closing. Seventh Circuit’s Franco v. Chobani Decision Confirms That FDA Enforcement Discretion Is No Shield Against Consumer Class Actions | Skadden, Arps, Slate, Meagher & Flom LLP
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