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Note: This is the first in a series of columns by O’Melveny & Myers attorneys, focusing on key legal issues specific to a variety of U.S. industries. In recent years, food manufacturers have been peppered by class action lawsuits based on the alleged mislabeling of their products. Plaintiffs’ attorneys have seized on consumers’ health consciousness and the surge of products catering to this trend: foods that advertise “antioxidants,” “no sugar added,” “all natural,” “0g trans fat,” and “no artificial colors, flavors, or preservatives.” If you are a food maker, you have likely faced (or will at some point) a claim that you are misleading consumers and violating federal regulations with these representations on product labels and accompanying websites. Such claims are often brought under state consumer protection statutes, including California’s Unfair Competition Law, Consumers Legal Remedies Act, and False Advertising Law. In the Northern District of California alone, more than 25 food-labeling cases have been filed in just the past nine months. Rather than wishing this trend away, companies should craft a defense. If faced with a food-labeling lawsuit, what will be your first steps?

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