From a corporate compliance/litigation perspective, my watchlist includes 3-D printing (“additive manufacturing”) and the rise of consumer class actions particularly in the area of food and beverage and nutritional/dietary supplements and the impact those cases might have on all manufacturers and distributors.

3-D Printing / Additive Manufacturing:

Almost every day, I see some sort of article regarding 3-D printing (a.k.a. “additive manufacturing”).  A few days ago, a British defense contractor (BAE Systems, Inc.) reported that a fighter jet fitted with parts that were printed in a machine completed a successful test flight.

In 2014, I will be watching to see whether the increase in the use of this technology will lead to issues involving intellectual property and ultimately product liability.  For instance, what happens if a plane crashes and the alleged cause of the crash is a failure in a product that was made through 3-D printing?  Will there be questions raised about the 3-D printing itself and whether the technology is sufficiently tested?  Will the quality checks typically performed by companies be sufficient to ensure the quality of parts made through additive manufacturing?  These are the types of questions that will have to be asked as more companies go down this path.

Consumer Class Actions/ “All Natural” Food Labeling:

In a previous post, I provided some background about the threat of consumer class actions to manufacturers and distributors.  For instance, in the past few years, there has been an explosion of litigation (which has garned a great deal of media attention) about products identified as “all natural.”  The “all-natural” litigation followed years of lawsuits against the tobacco companies.

On February 13, 2014, I will be participating in a webinar entitled “All-Natural” (Food Labeling) Litigation:  Strategies That Have Worked And Failed For Plaintiffs And Defendants” that is being organized by Perrin Conferences.  To sign up, please click here and for more information, please see this article on Food-Navigator USA.

Finally, for those that didn’t see the earlier post, I am going to re-post some advice I had given previously.

Why does this matter to me? I don’t manufacture food products.

Although the “Big Tobacco” lawyers are focused on food manufacturers, consumer fraud class actions are being filed across the country against manufacturers in other industries as well. If your company sells consumer products, you may want to review what was put on your labels and whether the claims made can be substantiated. Similarly, if you are a company that distributes consumer products, you may want to inquire with the manufacturers that you do business with.

Over the past few months, I have counseled several manufacturers on the risks associated with these types of consumer fraud class actions. I expect this trend to continue as more lawsuits are filed.

Depending upon your company’s specific situation, it may make sense (with the advice of legal counsel) to think about instituting some or all of the following steps in order to assess the risks to your business:

  1. Institute A Systematic Review of Your Labels and Label Claims
  2. Assess Whether Your Label Claims Are Substantiated (i.e., are they supported by testing (if applicable) or science?)
  3. Consider Whether to Document The Substantiation of Your Label Claims If Not Already Completed (typically, with the advice of legal counsel)
  4. Monitor Consumer Websites such as Amazon.com (often class action lawyers will troll these websites to find consumer complaints and new class action targets)
  5. Review Your Warranty Claims (i.e., are there are trends in the warranty claims that are being made by customers?)

In the end, there are no guarantees that you will not be sued by a plaintiff’s lawyer who believes that your company or product will be their next big conquest. However, there are proactive steps that can be taken to minimize these risks going forward.