Many of the latest food and beverage trends have legal implications that can be difficult to parse.
During an SFA webinar titled, "Legal Bites: Navigating the Latest Food and Beverage Industry Trends," food and beverage advisor Luna Samman explained some of the latest emerging legal trends and developments in the food and beverage industry as they relate to intellectual property, including how social media and influencer marketing can lead to misleading advertising, as well as some of the implications of plant-based foods and non-alcoholic spirits from a legal perspective.
Social Media Marketing
When it comes to an online marketing strategy, it can be easy for brands to fall prey to some of the legal pitfalls. Samman explained that many emerging makers turn to influencer marketing as a relatively cheap and efficient way to promote a brand online. However, there are strict rules about how brands and influencers can advertise the product.
“There are obligations and regulations set by the FDA and FTC about transparency and how those communications are made,” she said. For example, an influencer must disclose their relationships, compensation, and material connections to their followers or face potential legal repercussions.
When a brand and influencer do not abide by these laws, the FTC usually begins with warning letters aimed at addressing the issue by taking down the post or fixing the wording; however, “we’ve had [cases where] the FTC has taken action against influencers and brands who do not properly disclose sponsored content, and…sometimes there are product seizures and other enforcement actions,” she said.
Other areas of online marketing require a similar amount of care: Samman emphasized the importance of being hypercritical of one’s social media presence, as reposting a simple image can open a brand up for copyright infringement.
“Every single person watching this today is guilty of clicking on an image and copying and pasting it somewhere else,” she said. “That can, in most cases, be copyright infringement. It’s complicated because so many images on social media sites are copyrightable.”
To avoid copyright infringement, she recommended double-checking that every post that contains an image includes explicit consent from the owner, as simply crediting the source or third-party image-gathering app doesn’t mean one is protected from copyright violation.
“Secure permission, provide proper credit, use authorized repost apps,” she said.
Plant-Based Foods
The popularity of plant-based products is taking off and the offerings are becoming more regulated, said Samman. One of the most common disputes she has seen from a legal perspective has involved trademarks, as the companies that have dominated the market want to be the center of attention.
For example, in 2019, Nestle filed a trademark for the term “Incredible Burger” which the brand Impossible Burger contested and won.
“At the end of the day, ‘impossible’ and ‘incredible’ were too synonymous to coexist,” she said. For both plant-based makers and emerging makers in general, it’s important to look at the trademarks in the market before choosing a brand name, as it can be costly to pull product from the shelf, rebrand, and relabel one’s assortment.
“The industry powerhouses that have marks are going to actively act to enforce and protect their marks to maintain that bubble,” warned Samman.
The advisor also noted that it is important to be abreast of the legal issues affecting the market, such as the use of “milk” or “cheese” in reference to plant-based alternatives. She recommends looking at the FDA labeling guidelines to ensure that a plant-based alternative does not create consumer confusion and mislead the consumer in any way.
To learn more about hot-button legal issues in the specialty food industry, watch the webinar on demand in the SFA Learning Center.
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