[00:00:05] Melissa Traverse: Hello, and thank you for joining. I am Melissa Traverse, Director of Community here at BevNET & Nosh, and I am excited to welcome you to the Nonbase Podcast, a podcast built to help CPG owners and operators navigate growth challenges and build more profitable businesses. Be sure to check out nonbase.com, BevNET's platform built for the CPG community, where you can find this episode and so much more. Today on the NumBase podcast, we are joined by Justin Prochnow, a shareholder at Greenberg Trorig, who works closely with food, beverage and consumer brands on regulatory compliance, litigation risk and growth strategy. In this conversation, we are breaking down the real world legal and regulatory issues that are shaping how brands operated in 2025. And what founders and operators need to be paying attention to as we head into 2026. We will discuss recent lawsuits, court decisions, and enforcement actions, and what they actually mean for everyday decisions around labeling, ingredients, packaging, marketing, and manufacturing. From ultra-processed food scrutiny and GMO labeling to FDA attention on grass, to protein and GLP-1 claims. This conversation is designed to help you understand where risk is rising, how expectations are shifting, and how to stay ahead of issues before they turn into costly problems. Justin, it's so great to have you on the Non-Based Podcast again. You are certainly one of our favorite people to bring on, especially as we're heading into the new year. So welcome and thanks for joining us.
[00:01:47] Justin Prochnow: Well, thank you very much. I think the last time we were in studio together was out in Marina Del Rey during or after BevNET last year. So good to see you again.
[00:01:59] Melissa Traverse: Good to see you, too. And am I right to say a lot has happened since then?
[00:02:03] Justin Prochnow: Oh, no, nothing's going on. This administration is just like the last one.
[00:02:08] Melissa Traverse: Yeah, yeah. We're not rocking the boat at all. It's all business as usual, right? That's right. Well, we actually really do have quite a lot to get into. So let's jump right in. You know, without getting into specifics here, because I know you can't necessarily speak specifically about these cases, there have been some high profile disputes in food and beverage. We've had a trademark dispute with Smuckers versus Trader Joe's around Uncrustables. Prime versus Moss by Messi, it's a branding dispute. And then we have Slate Milk versus their co-packer with a lawsuit that is focused around a similar product their co-packer launched called Nuri. Are there any common mistakes you see brands making, you know, around topics like these? And are there any best practices that you can share with our audience to help them avoid being one of these names that we name on a podcast like this?
[00:03:07] Justin Prochnow: Certainly, the risk of action from either class action plaintiff lawyers, and in these cases, we're not even talking about the class action plaintiff lawyers yet. These are more competitor types of claims. But the risk of litigation is probably the biggest risk that companies have these days. It's not, you know, companies want to be compliant with the FDA, of course. We want to be good corporate citizens. At the end of the day, it's the risk of action from plaintiff lawyers or competitors because those risks involve monetary risks. And, you know, the FDA might slap your hand if you're really doing something, you know, then they could go into court. But for the most part, they're going to give you a second bite at the apple. Pardon the pun during the food broadcast, but. I mean, I love a Honeycrisp apple, which was not made by nature, but there's nothing tastier than a Honeycrisp apple. I'm all for GMO apples. It's the risk of, what's that going to cost to your bottom line? You know, again, like you said, without getting into the specifics of the Smuckers versus Trader Joe's case, it's a case about trade dress, which is a little bit different. I think a lot of people understand trademarks. You know, if you have the trademark for Spike and you've got the trademark and someone else comes along and sells a product and uses Spike, then you have a cause of action against them. In the case of the Smuckers and Trader Joe's, it has to do more with trade dress, which is the overall look and appearance of the product. And is someone going to be confused because they think they're buying one person's product when they're buying someone else's? So if anyone's seen the movie Coming to America, you know, back in the day with Eddie Murphy, and then there was a second one that came out. There was a whole storyline in there about his girlfriend's father had his own store called McDonald's, you know, and it wasn't quite it was McDowell's actually. So it was McDonald's and McDowell's and he didn't have the golden arches, he had the golden arcs. And, you know, he didn't have the Big Mac, he had the Big Mic, you know, and so it was all just very close. So it wasn't technically violating the trademark, but actually what it was, was it's it's infringing upon trade dress. So if a company has established goodwill towards a certain style or towards a certain thing such that you would buy it thinking you're buying someone else's products, then a company would have a claim that you're really infringing upon their trade dress. And so that's what's going on in that case is they're looking at and going, you know, does Uncrustable have have the market on that type of pouch filled with jelly or whatever it might be? And does the look of the packaging and everything else look so similar? And have they built up such goodwill that someone buying the Trader Joe's version might think that they're buying the Uncrustables? I don't know how that's going or where it is, but that's what they're looking at in that. And so we do have a lot of those types of cases. We've had that with some Urban Mate cases before. Does, you know, Guayaquil own the yellow and, you know, that they don't necessarily own the yellow, but if they've established such goodwill that people buying something else that looks similar would think they're buying, you know, the other product. That's what it comes down to. Is there a likelihood of confusion? So it's always important when a company is starting out to kind of vet their ideas and make sure and Look, sometimes companies know. If there's a company out there that's, you know, a big one in the marketplace, and they're trying to be a la, you know, McDowell's and McDonald's, I mean, there's clearly some intent there to, you know, get it close to that. And sometimes there is intent. Sometimes you've never heard of it before. We've had clients who get a cease and desist letter, and it says, you know, you're clearly building on our goodwill. And, and we're like, We've never heard of these guys before, like, what is the goodwill that they think they've engendered? Because they're not that big, they're not in Whole Foods or, you know, wherever else. And, but it's important if a company thinks they're being infringed upon to protect their brand. And so You might see that. So it is important if you've got a concept, you know, especially a particular one, is to vet that with your friendly neighborhood trademark lawyer to see, you know, are we going to have any issues with this type of format, this type of situation? You know, similarly, there are some other ones. Again, even I think the other one with the Messi and the Prime, again, that's a similar type of deal in that you're talking about trade dress. Does it look similar enough that someone's buying one product and thinking they're buying someone else? It also happens sometimes when you have a spokesperson who was a spokesperson for one group and now they're for someone else. a couple of years ago, and it's a little bit different because he made it clear, but there was the, the mobile phone companies always have, um, pretty competitive type of ads. And there was the guy. who kept saying, Can you hear me now? Can you hear me now? And then he switched. And that was the whole premise of the thing, you know. But in that one, they were making no bones about it. They were clearly trying to distinguish themselves from the other one, as opposed to if he just did it without saying anything. And people were thinking they were getting the one company when they're actually getting the other one. So It's making it clear that you're your own company and not trying to build on the goodwill of others. And sometimes companies are clearly doing it. And sometimes it happens. People have the same great idea. And you even see this with movies sometimes where you'll see two movies coming out at the same time. And they're like, I mean, clearly one copied the other. But where they were in production, there's really no way that they copied each other. Just sometimes people have great ideas at the same time.
[00:09:25] Melissa Traverse: I would certainly think if you're developing a competitor brand, one of the best ways to stay out of litigation is to check with a lawyer like yourself to make sure that you're not crossing any lines that could get you in trouble.
[00:09:37] Justin Prochnow: And to be clear, I'm only a trademark lawyer by the fact I stayed at a Holiday Inn Express last night. Obviously, I'm the head of our regulatory program here, so I spend more often than I would like to say reviewing packaging, labeling. But just by the nature of doing that enough, I tend to know enough about the trademarks and the trade dress to know that they should talk to someone that really knows it to find out what's going on.
[00:10:08] Melissa Traverse: There's another topic that's come up recently. There's been news around ingredient suppliers and consolidation in the food system. So David, maker of the protein bar, of course, acquired Apogee, that's the supplier. I think they supply them with an ingredient that mimics fat, but has much fewer calories. So at a high level, how do antitrust regulators think about ingredient innovation, exclusivity, and supply chain control?
[00:10:39] Justin Prochnow: Yeah, it's an interesting topic because, of course, on one hand, there is a vested interest in trying to lock down a company and get the exclusivity on it. But again, that's offset against, are you really preventing, you know, are you putting a restraint on trade that's an unfair restraint on trade? You know, typically it's more of when the top companies get together. This is why you sometimes see pushback on, you know, when Kroger's, you know, was looking to purchase Safeway, you know, or those types of battles. And that's more to do with, if it's all in one place, then maybe there's not as much competitive pricing, you know, for the end use consumer. I would say, you know, I know it's being looked at again. I don't know the specifics of this case. It has to be a pretty big, you know, there's no other option for companies moving forward. I would think in this case, without again, knowing the specifics of it, there are other options. Yes, this is, you know, a unique ingredient, but it's not like if that, ingredients not available, there aren't other options for companies to go after. And so I would think it would be a harder case to prove a specific basis for the government to get involved on antitrust. Again, if someone was cornering the market on caffeine and no one else could buy any form of caffeine, then I think that's something. But if someone, you know, purchases a specific supplier of caffeine, but there are other suppliers out there, probably less likely to be viewed as an antitrust type of violation.
[00:12:31] Melissa Traverse: Well we'll certainly all be sitting there with our popcorn and watching how that story unfolds.
[00:12:37] Justin Prochnow: There's so many, I mean, just the caffeine, the ingredient area, and I know we'll probably talk about it in a little bit about grass as well, but the ingredient area and some of the innovations in ingredients, and you see these different forms of caffeine like parazanthine and other forms of caffeine are definitely going to change the way some companies go about doing it, and again, a lot of it comes down to what's the supply out there for those types of ingredients. And then you have something come along like, you know, the big deal when the Russian-Ukraine war first started and people couldn't get sunflower oil because there was a lot of sunflower oil coming out of the Ukraine. And, you know, what other options there were for companies. So it's definitely ingredient availability of ingredients continues to always be a concern for companies.
[00:13:36] Melissa Traverse: And you're so right. We see and hear more about parazanthine, for example. It feels like every single week. So it'll be interesting to see what happens in that area. And we will get to grass in a little bit. Before that, let's talk about the natural grocers decision with the Ninth Circuit Court. And the Ninth Circuit, that's an appeals court. Is it right below the Supreme Court?
[00:14:02] Justin Prochnow: It is. So it's the federal, you know, you have the federal district courts and then if a case is appealed from that, it goes to one of the circuits and they're divided up by region. So ninth circuit is California. Uh, this would be bad, Washington, Oregon, you know, it's kind of Northwest along with, with California. Um, typically most cases are California cases that are getting decided by the ninth circuit.
[00:14:28] Melissa Traverse: So the recent Ninth Circuit decision sided with natural grocers, it involved bioengineered food disclosures, and it's reopened questions around GMO labeling. What changed and why does that matter for food and beverage brands?
[00:14:45] Justin Prochnow: It's interesting because this was different than a typical case in which natural grocers and a few others were actually looking to challenge the USDA's rules and laws on bioengineering that came out during the Obama administration, where you're required to disclose when you know, your product contains bioengineered ingredients. They went after it on three different kind of points. The first is that there is basically an exemption to the rules on bioengineering labeling for ingredients that are highly processed, like, you know, refined oils, you know, MCT oils, soy bean oil, such that when you test it, there is no GMO substance that can be identified because it's been so processed. And so those ingredients are exempt from the requirement to declare them because essentially They're not there because you can't test for it. And natural grocers and some of the other companies were like, this is the very reason why we want the is to know about those ingredients. And the fact that that it's undetectable doesn't mean it's not there. The companies know it's there. They use it in the product. It's listed in the ingredients list. And yet you don't have to declare it because it doesn't test. That doesn't seem to make sense. And The Ninth Circuit essentially found that the reasoning that the USDA can make a determination about what ingredients need to be declared and when they may be exempt. And they basically said the reasoning that the USDA used did not really make sense. And so it's always again, it's interesting, the Ninth Circuit can't just say that that law is no longer valid. What they did is they sent it back to the district court and the district court then can issue an order vacating the regulation or sending it back to the USDA to discuss. So in the particular case of whether highly processed ingredients should be exempt, the Ninth Circuit didn't say that the rule should be vacated. It said it should be sent back to the district court, and the district court should decide whether that part should be vacated or not. And so there'd be a difference. If it's vacated, then that part of the rule doesn't apply until the USDA comes up with different alternatives. If it's not vacated, then it remains in place until the USDA kind of re-looks at it. So for the first part, that part, it's kind of still up on the air on whether that's going to change immediately or whether long-term, and it could be the USDA comes back and says, okay, they didn't like that reasoning, but here's our different reasoning of why that should, and it still might be exempt. So we don't know on that part of it for sure. The second part was the one area where the Ninth Circuit did not find on the same side as as natural grocers. And that was that people should be allowed to interchange bioengineered with GMO. Their claim was that people understand GMO more. And, you know, right now under the requirement, you can also say GMO, but you have to say bioengineered. And their claim was people really understand GMO more. You hear it more. And essentially, the court said that was within the USDA's discretion, and we're going to leave it that way. So they actually denied the appeal on that part. The third part had to do with QR codes. And that, you know, as a general rule, you're supposed to make this disclosure, this product contains a bioengineered food. But there also was an allowance that instead of including that statement, you could just include a QR code, and then the information would be at the QR code. And essentially, the Ninth Circuit and natural grocers and others said, this is not clear, you just have the QR code, but most people don't even know that, you know, what what will be there. It's not clear the way it is that, in fact, it's, you know, identifying the bioengineered thing. And, you know, we don't think that's sufficient disclosure. And the Ninth Circuit agreed. And in that case, ordered the district court to vacate that part of the rule. When it gets back to the district court and it does that, and that could be any time, then that QR code option will not be available to companies and they'll have to do the regular disclosure. It's an interesting law because it's been out there for a couple years. You don't hear a lot about it compared to some of the other laws. There hasn't been, to my knowledge, a lot of enforcement of it by the USDA. We certainly don't hear about these big actions against companies. where you sometimes see it again as private plaintiff lawyers saying, you know, it's false misleading labeling. It's not compliant with the law and therefore, you know, they're in violation. But even that, I mean, it's been a relatively quiet requirement that haven't seen from lots. So this might generate some new attention. And of course, whenever this happens, attention from plaintiff lawyers about maybe their next, you know, great case.
[00:20:35] Melissa Traverse: When you first started talking about this topic, you mentioned ingredients like soybean oil, you know, highly processed ingredients. But what about the honey crisp apples? Does this apply to, you know, foods and ingredients like that?
[00:20:51] Justin Prochnow: Yeah, so there's certain ingredients or substances that are identified as required to be declared. It just depends on if it's on the list. Certainly sugar beets, corn, some of the standard what you would think of soybean, you know, on there. So it's a matter of looking at the list and seeing if it's one of those that are identified.
[00:21:13] Melissa Traverse: Well, we referenced this a little bit earlier, but the FDA has signaled it may revisit how self-affirmed GRAS, G-R-A-S, generally recognized as safe works. What's driving that conversation?
[00:21:31] Justin Prochnow: Well, for me to be able to say what's driving things that the new administration has done would be a whole separate podcast. But at least outwardly, RFK Jr., the Secretary of Health and Human Services, has expressed, and I would have to say in some respects, I do agree with him on this, some reservations about the quality of some of the self-affirmed GRAS reports. And this happens a lot. It just happened to me yesterday. I get, you know, a statement from a client. I'll talk with them and I'll say, look, I've looked at all the ingredients. Most of them are, you know, approved food additives or GRAS, but you've got several ingredients that are not grass. One of them happened to be creatine, you know, a popular ingredient these days. And there's one form that has been submitted to FDA and then there are other forms. And so, well, we've got two statements from our ingredient suppliers. And the first one that they sent me was a one sentence statement by the company that says, we self-affirm this as grass. And I always tell people that this clients of mine who might be watching, listening, know it. I send out an email. It usually has a link to a clip of an episode of The Office where Michael Scott has decided he's going to declare bankruptcy. And he kind of walks out of his office and then he says, I declare bankruptcy. And then he walks back into his office. And then a little bit later, Oscar goes in and he's cutting his credit cards. And he's like, you know, there's more to it than you just saying bankruptcy. And he's like, no, I declared it. And he's like, you know, there's forms to fill out. And then sometimes I feel like the companies that are doing self-affirmed graphs are the same way. They think like, if you just say it so, then it must make it so. But the reality is, if you're doing a self-affirmed graph, a well, you know, done self-affirmed GRAS dossier, they're typically 100 pages. The cost to have a third party do it is $75,000 to $100,000. They're evaluating the safety. They have a panel of three experts that sign off on it. And so you have this wide range of the one sentence self-affirmed GRAS to the company that spent $100,000 on a well-designed study. And you know, at least as of right now, there's no obligation to submit those to the FDA or anyone before putting your ingredients out on the market. Now, it used to be the case. From 1972 to 1997, companies were required to submit their cellophane from grass dossier to the FDA for approval. The problem was they got so backlogged that they just, they couldn't deal with all of it. And so they made it voluntary. And so for the last 28 years, it's been voluntary as to whether you submit your self-affirmed GRAS to the FDA. And there's various reasons why you might or might not do that. One of them might be that you didn't do a very good job on your self-affirmed GRAS report, but most of the time it's more has to do with, One could be protecting your proprietary. So you go and have this safety analysis done on a particular ingredient. If you submit it to the FDA, it becomes public for everyone to see. And then everyone else can take advantage of yourself from grass report if it's manufactured in the same way and meets the same specifications. So this happened with Manitoba harvest, you know, right after the, everyone's had 2018 farm bill and the, um, you know, and hemp. And then Manitoba Harvest, right around that same time, submitted a GRASS dossier for hemp seeds, which had not been GRASSed before. And the FDA, you know, issued, they don't actually approve the self-firm graph submissions to the FDA, but they issue a no questions, no on it. And so they did that and then it's out there. And even in the press release, the FDA said companies can, can utilize this self-firm graphs as long as they're manufactured pursuant to the same process and meet the same specs. And so a company might not want to submit that to FDA because they don't want other companies to know their manufacturing process and specs. and then for them to take advantage of the $100,000 they just spent on it. So they keep it in their back pocket and wait until someone challenges it, and then they bring it out. Alternatively, you get some big companies, your Coca-Colas of the world, your Cargills, who say, That's all great, but until we see that submitted to FDA and the no questions, we're not interested in talking about it. We don't want to take a chance on an ingredient that the FDA might come back and later say, no, we disagree. Because if you don't submit it to the FDA and get the no comments, there's always a potential risk that the FDA could come along and say, yeah, we disagree with you. And this is what happened back in the day. It seems like it was just yesterday. It's now been like 18 years ago. But the the four loco and the you know and all of those companies had done. self-affirmed grass reports establishing the safety of caffeine and alcohol and the FDA basically came along and said Yeah, we disagree and we're not we're not accepting those and so, you know for that reason a lot of bigger coming so that's where we are now and because of this kind of large discrepancy RFK jr. Has made it pretty clear that they're looking strongly at moving back to requiring self-affirmed GRAS determinations to be submitted to the FDA for approval. when this administration first started a year ago, they cut half the people. And they've hired some back, but it's still much leaner than it was before. Doesn't seem to be the case that that means all of a sudden there's all these more people to review all the self-affirmed grass reports that are going to be out there. And there's talk, if they do it, there'll be like two years where companies will have to submit their dossiers. And then after that, you know, nothing is going to be allowed until it's approved by the FDA. There's a lot of concern from industry that's going to curtail innovation because if you're going to have to wait a long time for the FDA to approve it, and so you're also potentially seeing some companies looking to submit their GRASS dossiers that they've already completed now to the FDA so that there's not this huge backlog if and when that becomes requirement and you're also seeing some retailers that are just taking the position that we think this is where it's going and so we're not going to accept any ingredients. that have a self-from-grass dossier that has not been submitted to the FDA for approval first. And so it's causing certainly some issues for companies in looking at, especially if they're looking at a grand scope of their product, of using ingredients that not only have been self-from-grass, but also have been submitted to the FDA and had no comments on them.
[00:28:47] Melissa Traverse: You mentioned creatine when we started talking about self-affirmed grass. Am I right to understand that each supplier would need that certification? It's not as if the grass certification would apply to creatine. It's each version of creatine, you know, provided by a different supplier. Is that right?
[00:29:08] Justin Prochnow: Well, again, it's similar to the Manitoba Harvest when I said if If you manufacture your creatine to the same manufacturing process and it meets the same specs, then you could potentially take advantage of the one creatine self-affirmed graft that has been submitted to the FDA for approval. but outside of that, then yes, it would need to be a new grass for each form or variation. This is what really was one of the big, um, kind of obstacles or roadblocks with hemp and CBD. Um, and especially CBD because each form of CBD, you know, it was slightly different, different levels of, um, of, uh, you know, CBD and CBN. So you have a hemp, extract with 80% CBD, is that the same as a hemp extract with 30% CBD? You know, you have it with now all of these different CBM and, you know, CBC and all of the different components and each one slightly different. So it would, you know, likely entail a new GRAS statement for each separate variation that, you know, differs in any reasonable context.
[00:30:20] Melissa Traverse: So does self-affirmed grass usually come into play more when you're talking about an ingredient that hasn't necessarily been as widely used in food and beverage like creatine, CBD, that kind of thing?
[00:30:33] Justin Prochnow: A lot of times, you know, some of these ingredients and, and, you know, maybe here, that's one of the things I always like to clear up because I get this still from clients a lot is like, Oh, well, we're using creatine. So our product is a supplement instead of a beverage. Um, you know, no one ingredient mandates what your classification of product is. But the type of ingredient you use may make a difference on how legal it is to use it and what steps you need to go through to take it. So for example, creatine, not really an issue in a dietary supplement. It's a dietary ingredient. It's been used for a while. There's really no roadblocks using it in a supplement. In a food, it's not an ingredient that's an approved food additive or grasped by regulation. So in order to legally use it in a food or beverage, you would need to use a form that has been self-affirmed grass. And so that and even more importantly, at the levels that have been approved for grass. So like the one that's been submitted to FDA is for one gram per serving. But we've got companies who want to use five grams per serving. They wouldn't technically be allowed to rely on that self-affirmed GRAS report that's been submitted to FDA. So they would need to have their own self-affirmed GRAS establishing it as safe at the levels they're using it in. and for the type of their product. But using creatine doesn't make it a supplement. It might make it an unapproved beverage, but it's more about how you're characterizing the product than what ingredients you're using.
[00:32:15] Melissa Traverse: And I want to point out that supplements like food, they're being certified for safety, not for efficacy. So even if the creatine is, it's found that it is generally recognized as safe, it says nothing about the efficacy, right?
[00:32:33] Justin Prochnow: That's correct. You have two different things, safety versus, you know, what structure function claims you can make about it. And is there appropriate science to back it up? That's a totally separate evaluation.
[00:32:46] Melissa Traverse: Well, we certainly have many, many food and beverage brands with functional ingredients out there in the audience. So I'm sure that'll be of special interest to them. Next up, we are going to talk about the increased litigation over what's emphasized on the front of PAC versus detailed disclosures elsewhere. What can you tell us about that?
[00:33:07] Justin Prochnow: you know, this is not new ground, it's been ongoing probably since people have put labels on things, but there seems to be an increased focus from plaintiff lawyers on arguing whether something on the front, if you've got a statement that's ambiguous, let's say, or, you know, not totally clear what it means, where do you need to qualify that statement? Does it need to be directly next to the statement? Can it be with an asterisk to a link to something at the bottom of the front panel? Or can it be on the side panel or on the back of the panel? And there's varying, of course, varying views on this. wouldn't surprise you to know, plaintiff lawyers think that it should be directly next to the claim because, God forbid, you would have to read the whole package on something that you buy. Of course, companies would say it gets too cluttered to have everything on the front. You know, we put it on the back. It also might be because they don't necessarily want people to know it right there on the front. So, look, we have obviously wide ranges in the spectrum of of why people do certain things. I would say, you know, the case law in California, which tends to be one of the drivers on this, at least right now, is you cannot qualify an unambiguous term with something on the back. And this is kind of consistent, even with things that FTC and FDA have said. You can't make a claim and then on the back say, oh, but we're not really making claims. You know, so, you know, you'll see this sometimes where it'll say like, this product will help prevent colds and flu. And then, you know, on the back, they'll say these statements have not been evaluated by the FDA or, you know, this statement is not intended to diagnose, treat, cure, prevent a disease. Well, if you're saying it's treating colds and flus on the front, you can say all you want about it not being intended to diagnose, treat, cure, prevent a disease, but you're making an express claim that it is. So your disclaimer means nothing. And similar to, you know, if you're making a statement outright on the front, you know, having some qualified language on the back that changes that thing. But where it gets a little bit trickier is when it's not totally clear. Let's say you have where we've seen a lot of fights on this is over claims about per serving on the front. Or let's let's take something like 1000 milligrams of omega threes. Okay, you just see 1000 milligrams of omega threes on the front. Now, if it's a single serving container, you know, and it's a thousand milligrams in the product, there's, you know, fine. That's not it. But if this is a multi-serving container and you say a thousand milligrams of Omega-3s on the front without anything else, then certainly you're likely to get a letter from a plaintiff lawyer saying, we thought this was a thousand milligrams, you know, per capsule and there's a hundred capsules. So we expected there to be a hundred times a thousand, you know, of Omega threes in this product. Um, If that's the case, then fine. But if it's actually a thousand milligrams per bottle, and there's a hundred servings of it, meaning that there's only a hundred milligrams of omega-3s per serving, or actually 10 milligrams per serving if there's a hundred, then more of a potential for it being misleading to people in what they're thinking. So certainly in those instances, um, me representing a lot of companies recommend that you be more clear with what you mean by that, you know, a thousand milligrams per serving. Even that can sometimes get tricky. You'll hear from plaintiff lawyers if a serving size is two capsules. So let's say you have, you know, it says a hundred capsules on the front and then you say a thousand milligrams per serving. And on the back in the supplement facts panel, you have clearly disclosed each serving is two capsules. So two capsules per serving, 50 servings per container. Again, you will get plaintiff lawyers who will say, I know that it says that on the back, but my client's reading the front and making purchase decisions based on the front. And on the front, it says a thousand milligrams per serving. And then right below that, it says a hundred capsules. the assumption would be that each serving is one capsule. And I'm going based on what's on the front, and I'm making an immediate decision that I'm doing. That's a little bit more debatable, like, should someone have to rotate around to read the back? My personal feeling is yes, I think you should. But that's the argument. And I would say courts are less clear on as a general rule amongst everyone, whether that would be confusing or misleading. So again, a lot of times when I talk with clients, it's trying to avoid this low-hanging fruit from plaintiff lawyers, right? We might win that argument ultimately, but you're going to spend a lot of money fighting over it. then the next iteration would be to just simply say 1000 milligrams per two capsule serving. Okay, then that's clear. There's no real room to debate that one. It's clearly per two capsule serving. I can make the arguments based on the per serving and the fact that it says two capsules on the back, and probably win a lot of those and lose some of them. But if you just say per two capsule serving, and so, you know, a lot of our types of things are just How worth it is to what you're saying and the way you say it towards the potential likelihood of having to battle it out? And I'll win it, but it'll cost you a couple hundred thousand dollars. Was that claim really worth it? As opposed to the slight tweak you could make that will then probably avoid the issue altogether. And so, you know, I think those are a lot of the decisions companies are having to make is, I know I don't like the look of it as much, but if it's saving me a hundred thousand dollars, maybe that's worth just doing that.
[00:39:23] Melissa Traverse: You know, as you were talking about label scrutiny, I thought about something that comes up at our offices all the time. We get so many energy drinks at the office. And, you know, I and many other people need to be careful about how much caffeine they're consuming. And sometimes you need to really examine the can carefully. And sometimes you'll see in, you know, tiny print that it contains 250 milligrams of caffeine, that kind of thing. What what are the regulations around ingredients? like caffeine and making sure that consumers understand what they are in fact consuming.
[00:39:59] Justin Prochnow: It's interesting and ironically for as much as the dietary supplement industry over the years has gotten heat for being this wild, wild west. I used to see it all the time. You don't see this much now, you know, totally unregulated industry. I would actually, as you've heard me say before, I would argue it's got way more regulations than most other industries. Now, whether you feel like FDA has done a good job of enforcing them or not is a different story. But I can spend all day going through all the regulations with people. There's less obligation to disclose the amounts of things in foods than there are in supplements. There's no obligation to disclose the amount of caffeine on any food or beverage product with a nutrition facts panel. certainly recommended. You know, there was hearings on the Congress about 10 years ago, where Red Bull and Monster and Rockstar, you know, there was all the discussion about, you know, disclosing the amount of caffeine and FDA had, you know, a workshop. And it was at the point where there was caffeine, and now we just have protein and everything. But, but before it was caffeine, it was like, you know, they had wired waffles, which was, you know, waffles with caffeine, and they had syrup with caffeine, and they had chewing gum, Wrigley's had a gum out and, and, you know, caffeine everywhere. And then a couple years later, it was CBD and everything. And now it's protein and everything. So it, you know, it changes over the years. But at that point, you know, there was, a call from congressmen, you know, and it was mostly the monster and the rock stars. And, you know, there was one young girl who died, but she had a lot of complications beforehand. And, you know, there was real claim like, hey, you know, we should put limits on caffeine. And essentially, the FDA, after all that said, we don't really have any issues with caffeine at 400 milligrams or less, you know, per day. And we're not going to make anything. And then it kind of switched to the marketing to children. And then, you know, that's where they started putting some clamps on, hey, you know, energy drink, you can't go advertise it, you know, the 10 year old soccer game, you know, and things like that. But as far as like limits on caffeine, look, as a general rule, I tell companies, it's a good idea to limit your consumption of your product so that it's under 400 milligrams of caffeine per day. So if you have 200 milligrams of caffeine in your product, probably a good idea to have a statement on your product that discloses 200 milligrams of caffeine, don't drink more than two cans per day. Of course, that means that you shouldn't have any other caffeine, you know, the rest of the day. Um, And that was really the FDA's bigger problem too, kind of as you said, it's one thing when you have, you know, most people understand there's some caffeine in a soda, now energy drink, but when you didn't know that it was in your Cracker Jacks, the Cracker Jack, Cracker Jacks, those type of things. it's a lot harder. It's kind of like dieting, like you're like, Oh, I only had, you know, this. And they're like, Yeah, but remember that scoop of Skittles you picked up off of the thing, and then you had some chips. And then you know, you, your kids had a little pizza, and you have one of the slice of that, and you forget about all those extra things adding up kind of the same with caffeine, if you don't know all the sources of where it's coming from. So as a general rule, most companies these days that do energy drinks, and, you know, I've probably done more energy drinks than anyone with all of the different sessions that Bev met and everything else. Most companies these days are disclosing the amount of caffeine and including a disclaimer that says not intended for pregnant or nursing women, children under 18, and those sensitive to caffeine. There's no law requiring it, but that's become almost kind of the standard for the industry. Disclosure of the amount of caffeine and some sort of warning statement on that so people have a general idea of how much they're getting. But the reality is there's no law. We've seen some litigation, as you know, some high-profile litigation against companies you know, those litigations are interesting because the plaintiff lawyers from the outset are having to deal with there's actually no specific law that's being violated when they're complaining about caffeine. Their general argument is it's unsafe just because of caffeine, but it's not like they can point to and say, oh they violated by not doing this because there's actually no requirements related to caffeine at this point in time.
[00:44:40] Melissa Traverse: Well, I'll certainly be scrutinizing those cans. Our next topic is centered around made in the USA claims. They continue to generate lawsuits and enforcement. And, you know, I would assume this plays into it. It can be tricky because like any manufacturing, you know, any manufactured process, there are different components manufactured in different places. So perhaps that plays into it as well. But why are made in the USA claims? Why do they continue to generate lawsuits and enforcements and how do you get them right?
[00:45:13] Justin Prochnow: For years and years, it was interesting. The FTC had this guidance document made in the USA and it talked about things and it talked about like, you know, made in the USA as a general rule has always been interpreted by the FTC to mean that not only was the product assembled or manufactured in the USA, but all or virtually all of the components are from the USA. They would use the example of the barbecue grill, like where, you know, it's, it's assembled in the USA and all of the parts, except for like the ignition switch are from the USA, then you can probably make an unqualified made in the USA claim. But if, you know, the whole outer carriage was made in another country, then they would probably view this, you know, more substantive that you would need to make some sort of qualified claim. For years, there was really no discussion about food and beverages in the document. And it was always a little unclear to people, you know, made in the USA, does that really apply to foods? Like, does that apply to all the ingredients? And you would see some actions from companies, you know, against companies, but it was kind of sporadic. Well, the FTC right around COVID, just after COVID, issued a new rule. And they could always take action over Made in the USA under just the general what's called truth in advertising principles about that all advertising has to be truthful and not misleading and substantiated. They found it, there was, it came up enough that they decided to make a specific rule about Made in the USA and make it clear that you are not allowed to make an unqualified Made in the USA claim unless the product is not only manufactured, but all or virtually all of the ingredients are from the USA or, you know, materials are from the USA, including food and beverage, the ingredients. And so once they did that, this kind of gave new life to the made in the USA claims and, you know, the plaintiff lawyers can point to this specific law that says, hey, it's got to be all or virtually all. And I would say it's something we see a fair amount. Now, typically, and sometimes it's just like, I don't know what the company was thinking. Like, you know, you'll have like a Japanese matcha product, you know, and the first ingredient is Japanese matcha, and there'll be an unqualified made in the USA claim. And sure, it might have been manufactured here, but when your number one ingredient is a foreign ingredient, you're going to have a problem with a unqualified made in the USA claim. So truthfully, most of the made in the USA claims are fairly clear now. And most companies are just going to the qualified claim made in the USA with worldwide ingredients made in the USA with globally sourced ingredients made in the USA. I have some that go, you know, made in the USA with awesome ingredients from around the world. Um, although then now you have to also prove they're awesome. I mean, so, you know, but, you know, I think we're just going to see more and more qualified claims because the reality is, as you said, a lot of the products are manufactured here, but they just don't have any idea. Now, what you can do is you can go real specific and say something like bottled in the USA or, you know, you'll see some born in the USA. And again, you have to be careful about that. If it was like, I think what people meant there is the idea was thought of by people from the USA, but it's still not. And so again, you have to be careful about not being misleading with some of those types of claims. But if you're specific enough, packaged in the USA, bottled in the USA, blended in the USA, then you can make those types of claims without necessarily having to go that extra modification of the ingredients.
[00:49:16] Melissa Traverse: My next topic is certainly something we all are talking about all the time here in the food and beverage world, and that centers around protein, specifically protein and GLP-1-friendly language. There are brands who have released GLP-1-friendly frozen meals and drink powders. There's almost nothing that can't support a diet that centers around being on a GLP-1. How are regulators likely to view those claims, especially when they imply, even if indirectly, health outcomes?
[00:49:49] Justin Prochnow: Yeah, it's interesting. I still think it's going to be far less of a regulator issue and way more of a plaintiff lawyer class action risk. It is interesting, you know, we always, of course, go to Expo West every year. Sometimes do a presentation sometimes just walk around and you know, you can tell what's going on when you go to Expo West you know, it's some years it was coconut water and some and of course it was hemp and CBD for a couple years and This past March and probably again this morning. I mean it was all about protein, right? It was Protein popcorn and protein pickles and of course protein sodas and now you're getting clear clear protein sodas and You know you name it and it was protein and it's all related to the GLP one which look I've worked with companies on weight loss products for 20 plus years and I can safely say there is nothing that has achieved the results that the GLP-1 shots have. And now, as we've heard, there's GLP-1 capsules, which is only going to make it even more of a thing, because there certainly were people who were probably leery of the shot and everything, and now I can take it in capsule form. I mean, it's quite the difference. And so we certainly see a lot of touts of protein, and along with that comes some of the focus from plaintiff lawyers again on protein declarations on the front of the package. And if you make a protein declaration, including just the number of grams of protein, you are required to include the daily value percentage of protein in the nutrition facts panel. And we see a lot of litigation over that. And then even more so these days, wasn't really a big deal. Most protein used to be whey protein or, you know, but now we have all the plant-based proteins, the pea proteins, the pumpkin seed protein, and they have different kind of levels of completeness. And so we have this thing called the PD cast, which is the protein digestibility, uh, converted amino acid score. Um, and you know, not all protein is the same and you know, protein from almonds has like a 0.54, uh, PD cast, which means for every 10 grams of protein, you're really getting the same daily value percentage as five grams of protein. So, And you have to adjust the daily value percentage in your label to account for that. And we certainly see plaintiff lawyers going after those types of things. We're also seeing them just going after the actual level. You've declared 10 grams. When we test it, it doesn't actually come out to 10 grams. It comes out to 8.5 grams. And so focus on protein is there. And by the same token, GLP-1, and I see this a lot and, you know, my first question when I see companies that make a claim that isn't specifically defined like GLP-1 friendly is, what do you mean by GLP-1 friendly? Does that, I mean, there's no definition of it. So, I'm always a little bit leery when companies use claims where there's no definition. because it leaves an opening for plaintiff lawyers to say, well, my client thought it meant this. And you might have been thinking it meant this, but my client thought this. So, you know, friendly is always, I saw this too with keto, you know, and keto friendly. And I always ask clients, what's the difference between saying keto or saying keto friendly? And usually I got kind of a blank stare back and like, I don't know, like it sounds good. And so the same with GLP-1 friendly, I mean, you ask 10 people what they think GLP-1 friendly means, you might get some that are the same, but you're probably gonna get, I think most people that know about GLP-1s would say, I'm guessing it's got higher levels of protein or fiber or other nutrients that maybe people aren't getting while, if they're on a GLP-1 diet. But that's not necessarily, I mean, when companies make diabetic friendly claims, It's a little bit different reasoning of what friendly means. You know, in those cases, typically it means if you're a diabetic, you can take this product and it won't exacerbate, make your diabetes worse, but it's not going to treat your diabetes. GLP-1 friendly, a little bit different. Does that mean, again, as I said, that you're got more protein or fiber? So I would say two things. If companies are going to do that, they should be prepared to say what they mean by that instead of just slapping it on there. And two, probably we're going to get to the point, and sooner rather than later, where you should be describing what you mean by GLP-1 friendly on the label, whether that's an asterisk that says, you know, by GLP-1 friendly, we mean 10 grams of protein and six grams of fiber or whatever it is. So that there's, I say this with any label claim to companies in the industry, don't allow the plaintiff lawyers the chance to come up with their own definition for something. If you're making a claim for something and there's no definition of it, then you should define it yourself on the label so that you don't give the plaintiff lawyer the opportunity to define it themselves.
[00:55:23] Melissa Traverse: And I would think to be extra safe, if you highlight the amount of fiber, the amount of sugar, the number of calories, then you're probably speaking to people who are monitoring those things anyway without taking the risk of getting in trouble.
[00:55:36] Justin Prochnow: That's right. That's right.
[00:55:37] Melissa Traverse: All right, last question for you. And this is around synthetic food dyes. So both the FDA and several states are moving towards restricting synthetic food dyes. What should brands be planning for now, especially taking into consideration that so many of the brands in our audience are more on the natural side anyways. So I think a lot of the folks that we are speaking to, they may already fall within whatever the future restrictions might be. but they kind of have a leg up over some of the big CPG brands who are going to come under scrutiny. So what's the opportunity for those brands taking into consideration what the FDA and, you know, these states are moving towards?
[00:56:23] Justin Prochnow: It's happening. I mean, anyone who saw the press conference from last April, the RFK Jr. and FDA did, I mean, it was, you know, a little bit of talk about synthetic dyes, and then the 45 minute hit piece on sugar, like, you know, worse than, than crack cocaine. I tell people a lot these days, I'm like, Yeah, I mean, it's an ingredient that's not allowed, but the worst thing you could do would be to have a synthetic color dye or added sugars in your product in the eyes of the FDA these days. I mean, getting rid of synthetic dyes was one of the, you know, the staples in the RFK-like platform. That was eight months ago. It seems like that's the only thing that's really been done. But that's continued to be the focus and it's going to continue to happen. You could see like the main companies, you know, got on board with him right away on getting rid of some of those color dyes and it's going to happen. So anyone using those synthetic dyes should should be looking. you know, for alternatives, natural alternatives, because anything with the color in the name of it, like, you know, yellow, a yellow and a number, I mean, you know, those, those days are going to be, you know, days of the past. I mean, it's pretty clear where that's going. I had an amazing product, I might have to send it to you, someone, it happened to be a company from a foreign country. But I mean, it was almost like it was like a spoof, like a Saturday Night Live. It was 280 calories with like 78 grams of added sugars, plus like five different color dyes and whatever else. And I wanted to be like, wow, you are trying to put every single thing that is going to be targeted, you know, over the next year into this product. It's a huge opportunity for companies who are already using, you know, things like, of course, you know, everyone uses beet juice for, you know, a red or thing or, you know, saffron or, you know, any of these types of ingredients. That's where it's going. So everyone, out of everything, that's the one that people just need to get on board. And because that that tide's not likely turning.
[00:58:40] Melissa Traverse: I can't wait to see if there's an answer to blue Takis. My kids got a hold of those over the break and everything was blue. I don't know if butterfly pea flower can achieve that color, but certainly we will be watching and waiting.
[00:58:58] Justin Prochnow: Well, it's sad for me. My friends know I just had a birthday, and I am a sucker for blue drinks. Like, you get me a tropical blue drink with a blue carousel and an umbrella in it, and I am good to go. And so, yes, I'm worried my blue drinks might have like the shimmering butterfly pea protein. blue to it from now on.
[00:59:26] Melissa Traverse: They might be a little bit less blue.
[00:59:28] Justin Prochnow: Yes.
[00:59:29] Melissa Traverse: Well, Justin Prochnow at Greenberg, Trorig, thank you so much for keeping us on the straight and narrow and for giving us a heads up on what we should watch out for in 2026. Always great to have you here. So thank you for joining us. And for everybody else in our audience, thank you for listening to the Non-Based Podcast, and we will see you next time.
