The proverbial "shoe has dropped" for companies in the food and beverage space. Lawsuits over UPFs are here. And although the first such lawsuit was unsuccessful, I have every confidence the plaintiff's bar will evolve their theories and strategies such that UPF lawsuits will become a future reality.

UPF lawsuits allege these foods cause obesity, diabetes, cancer, cardiovascular disease, hypertension, and liver disease, among other health conditions. They seek damages for treatment costs and pain and suffering. They also sometimes seek changes to ingredients, labeling, and advertising. UPF lawsuits accuse food and beverage companies of: (i) hiding science that shows the foods are unhealthy; (ii) misleading labeling; and (iii) deceptive and aggressive marketing – all in an effort to get consumers addicted to these products. The first of these lawsuits, filed in Pennsylvania against a number of major food and beverage companies, failed at the pleadings stage although the plaintiff's attorneys are seeking to re-file the case and provide more specifics. Indeed, the City of San Francisco recently filed its own UPF lawsuit against many of the same food and beverage companies.

So, if these lawsuits are inevitable, what are manufacturers to do? While there are no simple answers to this question, here are a number of suggestions. First, monitor the litigation and legislation closely, especially since there is an emerging movement to develop a formal definition of UPFs which will likely increase the number of lawsuits. Second, audit your ingredients and attempt to remove those that are the subject of government concern like Red Dye No. 3. Third, review your marketing and advertising claims to ensure all products are being marketed and labeled in appropriate ways. Finally, consider involving experts to counter plaintiff's health and addiction theories so that if your company becomes the subject of a lawsuit, you can defend the healthfulness and integrity of your product.