Tocopherol Class Actions: A Defense Playbook for Food and Beverage Companies

The useful part

If your company has received a demand letter or complaint alleging that your "All Natural" or "No Artificial Preservatives" labeling is deceptive because your product contains tocopherols, you are not alone. What Are Tocopherols — and Why Have Plaintiffs' Attorneys Set Their Sights on Them? Tocopherols are chemical compounds that comprise forms of vitamin E and occur naturally in certain oils and plants.

How it works

• Administration (FDA) classifies tocopherols as Generally Recognized as Safe (GRAS), and they are permitted in organic food products.
• In food manufacturing, tocopherols serve two primary purposes: as a nutritional additive (vitamin E) or as an antioxidant that extends shelf life.
• The typical complaint alleges that a company's front-of-package claim is false or misleading because tocopherols appear in the ingredient list — and plaintiffs argue that tocopherols are, or can be,...
• Unfortunately for defendants, most tocopherol-related cases have survived motions to dismiss.

Details worth keeping

This article provides an overview of the current litigation landscape, explains that, while these cases can be susceptible to early pleadings challenges, they often survive motions to dismiss, and identifies practical defense strategies that can meaningfully reduce exposure. Plaintiffs' attorneys have seized on this ambiguity. Several courts have found that whether tocopherols functi...