A Legal Look at 2025 and Beyond for Food and Beverage

This article was written as part of The 2025 Big Connecticut Food Event.

The food and beverage industry is in the midst of a dynamic and challenging time, marked by more regulatory scrutiny, evolving consumer awareness, and unrelenting litigation.  Three key trends could potentially drive significant change and increased risk in 2025 and beyond.

• Product safety concerns continue, thanks to a growing number of recalls and new regulation of contaminants, e.g., per- and poly-fluoroalkyl substances (PFAS).
• As part of a broader shift in consumer awareness, litigation threats push packaged goods companies to better assess claims on labels and in marketing, all while FDA proposes to add front-of-package nutrition information.
• Rising recycling and waste management costs drive states to implement, and many others to consider, extended producer responsibility (EPR) laws that shift food packaging end-of-life costs to producers.

Food and beverage companies should stay ahead of these and other changes and proactively engage legal and technical advisors to evaluate the potential impacts and manage the risks.

Product Safety and PFAS

One area of increased regulation and litigation involves PFAS, a group of synthetic “forever chemicals” that accumulate over time, do not break down, and have been linked to adverse health effects, including cancer, low birth weight, and endocrine disruption.

In response to health and environmental risks, several states and the federal government are rolling out a growing thicket of regulations.  Historically, PFAS have been intentionally added to consumer products (e.g., cookware, food packaging) where their heat-, grease-, and water-proof properties are valuable but those uses are increasingly being banned or phased out, including in Connecticut.  These state bans vary in scope and are causing compliance challenges for companies with multi-state footprints.

EPA also recently established maximum contaminant levels (MCLs) for six of the most common PFAS in drinking water that are essentially non-detect, given laboratory detection limits and margins of error.  Many states, including Connecticut, have their own suite of action levels associated with various PFAS.  Understanding these requirements is critical for any food and beverage manufacturing facility operating its own well, which may be regulated under the Safe Drinking Water Act and need to comply to protect worker health.

Food facilities also need to be aware of the PFAS content in their water if it is used as an ingredient in their products, regardless of whether they have their own well or are a utility customer.  Although there are only a few food-specific PFAS standards, states and FDA continue to test the general food supply and are consider setting limits for certain foods, particularly for produce and products derived from animals that could be grown or raised on contaminated fields.  Farms across the country are already grappling with the devastating effects of PFAS-contaminated fertilizers.  Other standards are likely on the horizon, as any angler or hunter who has been subject to a local “do not eat” order for fish and game can tell you.

Labeling and Marketing

In recent years, concerned citizens and consumer protection groups have taken action against fast food chains, grocery stores, and consumer packaged goods companies, as a rising tide of class action lawsuits has alleged false advertising, product liability, product safety, failure to warn, and more.  These lawsuits happen despite — or perhaps because of — voluntary recalls and, even when meritless, can carry hefty price tags.

Several cases have highlighted the risk of overclaiming or “greenwashing” a product’s purity or health qualities, including at least one example of a plaintiff relying on public SEC filings to challenge a company’s food safety claims related to PFAS.  These claims emphasize the need to coordinate with legal counsel to manage — and manage the flow of information in connection with — internal environmental, health, and safety audits and reporting.

Several consumer packaged goods companies have faced separate class actions for allegedly falsely marketing their products as pure, natural, or organic even though they may contain PFAS.  Even fast casual chains and grocery stores have faced litigation alleging their “100% compostable” food packaging is falsely marketed because it contains PFAS, which do not biodegrade.

These cases are good reminders for industry marketers to coordinate with legal counsel to assess claims made on packaging or in advertising, which is particularly critical for claims without bright-line standards.  For example, there are strict requirements regarding allergens, gluten, and organic but many other labels (e.g., lactose-free, sugar-free, free range, regenerative) are guided by a truth-in-advertising standard.  Complying with this somewhat more flexible standard requires a sophisticated risk assessment, balancing the desire for captivating marketing, the need to protect human health, and the risk of regulatory enforcement or litigation from competitors and consumers.

Beyond a renewed focused on marketing claims, there may be other changes coming to many consumer packaged goods.  The FDA recently proposed front-of-package nutrition labeling for most foods that already display a Nutrition Facts panel.  The proposed rule, for which public comment is ongoing, is intended to make healthier choices easier thanks to a small, front-facing Nutrition Info box displaying the product’s percentage of daily value for (and whether it has high, medium, or low) saturated fats, sodium, and added sugar.

Interestingly, the high-medium-low scale appears to be tied to serving size, not a particular reference diet (e.g., MyPlate) or even the %DV.  Regulators anticipate the label, which does not include colors or stop signs common in other countries with similar requirements, will incentivize producers to reformulate, and some certainly will.  However, it is also possible others will simply adjust their serving size to move lower on the scale.  Whether and how consumers will ultimately respond to these labels are open questions.

Packaging and Extended Producer Responsibility

Lastly, while companies assess what is printed on their packaging, many states want them to also focus on what their packaging is made of and how easy (or not) it is to recycle.  So far, five states — California, Colorado, Maine, Minnesota, and Oregon — have extended producer responsibility (EPR) laws that would shift the cost of lifecycle management to manufacturers, brand owners, and retailers.  As these programs roll out in these states and waste management issues persist in others, this list is likely to grow.

Most EPR laws designate a producer responsibility organization to collect data on single-use packaging, paper, and food serviceware; assess and collect fees, usually on a cents-per-pound basis, from obligated producers; and direct those funds to improve recycling infrastructure.  Regulators believe this system will incentivize packaging design innovation to improve recyclability and reduce fees.

Assessing EPR laws is not necessarily straightforward.  Depending on the state, the brand owner, manufacturer, licensee, or importer may be the obligated producer and the types of covered materials changes (e.g., primary product packaging vs. shipping boxes).  Each also has various exemptions and carve-outs, e.g., financial thresholds (based on gross global revenue, except in California) and weight thresholds (based on the amount of the packaging, not the product).  The various requirements necessitate a careful review of contracts in all directions and coordination among several parties to collect the data required to evaluate potential exemptions and, if necessary, satisfy the regular reporting and fee payment requirements 

Next Steps

Given the complex and rapidly evolving landscape, sophisticated food and beverage companies should take proactive steps to maintain compliance and manage risks associated with these significant regulatory, legal, and environmental challenges.  A few recommendations for the road ahead:

• Work with trusted legal counsel to review existing and future manufacturing, licensing, supply, distribution, retail, and real estate agreements to assess potential liabilities, particularly in the face of shifting regulatory requirements (e.g., the prior purchase of a factory with legacy environmental contamination).
• Create a team (e.g., legal, marketing, quality control) to evaluate marketing campaigns and product labeling to avoid concerns related to consumer protection, false advertising, and intellectual property.
• Seek legal and technical advisors to manage environmental, health, and safety matters, including risk management planning “from farm-to-fridge…and beyond.”

To succeed in today’s market, it takes more than a great tasting product or a profitable business.  Food and beverage companies, including their suppliers and retailers, need to prioritize compliance, transparency, and innovation to ensure long-term success and consumer trust.