LaCroix water. Photo: John Disney/ ALM

It's become a cult favorite, but now LaCroix flavored sparkling water has become something else: the subject of a class action lawsuit.

Chicago firm Beaumont Costales recently announced that it has sued LaCroix's parent company, National Beverage Corp., in Cook County for allegedly falsely branding its product's ingredients as “natural” when the U.S. Food and Drug Administration has classified them as “synthetic.”

Despite the relative commonality of these types of suits in recent years, the story garnered significant news coverage, likely because of the popularity of the product. And it probably didn't hurt that Beaumont Costales said one of the synthetic ingredients in LaCroix products is also used in cockroach insecticide, a tidbit that made for catchy headlines.

In a report published a few days after the original news—and covered by several news outlets—Popular Science magazine deemed the water “safe,” but LaCroix still felt the reputational damage, asking its consumers in a tweet to “please stand with us as we defend our beloved LaCroix.” National Beverage also chastised what it called a “false” and “defamatory” lawsuit over which it would “seek actual and punitive damages.”

Part of the problem, consumer product labeling legal experts said, is that the law around the issue is murky, and the FDA is still working to develop a clear objective standard for what is “natural.”

Corporate Counsel spoke with some of these experts to understand how legal departments can mitigate, if not prevent, the chances of facing a lawsuit stemming from product labeling.

Coordinate With Other Departments

Whether your advertising legal work is handled in-house or outsourced, advertising copy of any sort must be discussed among the marketing, research and development, and in-house legal departments before it is run in any medium, said Larry Weinstein, a litigation partner and co-head of the false advertising and trademark group at Proskauer Rose.

“It is way too often the case that there is no [eyes], or no adequate second pair of eyes on advertising because issue-spotting really is the key,” he said. “The bottom line is that for anything you tell the consuming public, you need make sure that it's accurate.”

If the label includes the term “natural,” Weinstein added, conversations between lawyers, R&D and marketing representatives should be occurring, and all the parties should be asking, “'What are the ingredients? Is there an issue about whether any of them can be described as natural?'”

Consider All Potential Plaintiffs

Litigation over consumer product labeling can come in several forms—from a competitor suing under the federal Lanham Act or a consumer class-action suit brought under state law, Weinstein said. In addition, he said, companies may turn to the National Advertising Division, an industry self-regulatory body, for dispute resolution, and the Federal Trade Commission also could opt to get involved.

The required burden of proof, the expense and the entire process are very different depending on the forum, so in-house lawyers should carefully consider who might bring a challenge and what the risks and costs of defending it are, Weinstein said.

“They have to ask, 'What is the likelihood and where? What are the costs?'” he said. “Maybe the benefit of this particular advertising claim would be well outweighed by the cost of defending a lawsuit.”

Keep It Simple

Raqiyyah Pippins, counsel at Arnold & Porter Kaye Scholer, advises her clients that the simpler the product or ingredient label, the better. In fact, she has a general suggestion: Try to avoid ingredients that are more than three syllables.

“Ideally, the ingredient names should be in terms that are facially commonly understood,” she said.

With regard to use of the term “natural,” Pippins also recommends using the standard adopted by the U.S. Department of Agriculture as a benchmark, which is a relatively narrow definition, even for non-agricultural products.