Made in America… A guide to avoiding legal hot water with origin claims

The President’s Executive Order​ directs the federal government to “maximize the use of goods, products, and materials produced in, and services offered in, the United States,” ​and directs the United States to, “whenever possible, procure goods, products, materials, and services from sources that will help American businesses compete in strategic industries and help America’s workers thrive.”

This order, along with the growing sentiment among American consumers in favor of American made product, will likely encourage food and beverage companies to highlight on packaging when their products are ‘Made in America.’  However, such claims should be carefully assessed to ensure they are factually accurate to help protect against litigation risk.     

Could a claim make you a target for an FTC enforcement action, or a defendant in class action litigation?

Putative class actions against food and beverage companies arising out of the labeled origin of the products have been on the rise over the past decade.  These suits generally arise from a label representation or inference that the product is made in a particular place when, in actuality, it is largely sourced elsewhere.

These lawsuits have not only targeted products purporting to be ‘Made in the USA,’ but also Hawaiian Host macadamia nuts manufactured in California, ‘Jamaican Style Lager’ brewed in Pennsylvania,  and ‘Helados Mexico’ brand paletas made in California.

So before including a ‘Made in America’ sticker on a product, a food and beverage company might consider whether that claim will make it a target for an FTC enforcement action, or a defendant in class action litigation.

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