In an industry full of buzzwords, “adaptogens” and “nootropics” are current standouts within the beverage industry.

The beverage industry experienced a significant shift in consumer preference following the COVID-19 pandemic, as consumers’ proclivity for nutrient-rich foods stimulated a rise in beverages designed to provide added health benefits, such as increasing energy, decreasing stress, and improving overall mental health. The increased popularity of these “functional beverages” (i.e., beverages that provide added health benefits) is more than a fleeting trend, as the industry is projected to reach $62 billion by 2027.

Marketers of yogurt products may celebrate the latest approval by the Food and Drug Administration (“FDA”) of a new qualified health claim related to the consumption of yogurt and type 2 diabetes. However, producers of such products should also be cautious in presenting these claims on product labeling so as not to run afoul of limitations imposed by FDA related to this new qualified health claim.

In the bustling landscape of consumer goods, caffeinated beverages stand out as a daily staple for millions of Americans. A recent shift towards “clean caffeine” and caffeine alternatives has further energized consumer demand for ready-to-drink caffeinated beverages.

Recently, however, the spotlight has turned to the highly caffeinated beverage industry for far less stimulating reasons, as cases of alleged caffeine overconsumption have led to severe health repercussions. As highly caffeinated beverages continue to expand their market share, it is crucial for ready-to-drink beverage brands to carefully consider their product’s caffeination levels and the way those products are labeled and/or marketed.

In May 2022, when the Federal Trade Commission (FTC) proposed updates to its Guides Concerning Use of Endorsements and Testimonials in Advertising (Guides), it had been 13 years since the Guides were updated. Much has changed in the way that businesses marketed and sold their brands, products, and services over that period. While the use of social media marketing has been well established for the better part of the last decade, the use of social media influencers—that is, people who use their expertise, knowledge, and/or celebrity to promote ideas, products, services, and brands via the internet—has seen a dramatic uptick since the period preceding the COVID pandemic and is now estimated to be a $21 billion industry in its own right. The rise of this marketing approach—and the increasingly prevalent lawsuits against influencers and the companies they promote—played no small part in the FTC’s reconsideration of previous guidance, as evident from the finalized guidelines which were released June 29, 2023.

The question going forward is to what degree the new guidelines will change the way marketers approach the use of social media influencers. To get at the issue, it is helpful to review the substance of the FTC’s revisions.

Consumers’ increasing awareness of the advantages of nutrient-rich foods has prompted global food and beverage companies to begin enhancing their products with nutritional additives, leading to the creation of new products—and new categories of products—targeting consumers’ changing health and wellness needs.

On February 22, 2023, the U.S. Food and Drug Administration (“FDA” or “Agency”) released draft guidance on labeling of plant-based milk alternatives (“PDMA”). This draft guidance is meant to clarify the FDA’s current view on the naming of plant-based foods that are marketed and sold as alternatives for milk in accordance with Sections 403(a)(1) and 403(i)(1) of the Federal Food, Drug, and Cosmetic Act. The draft guidance also provides recommendations on the use of voluntary nutrient statements comparing plant-based milk to cow’s milk.

On November 9, 2022, the U.S. Alcohol and Tobacco Tax and Trade Bureau (“TTB” or “Agency”) announced that the Agency is considering updating the alcohol trade practice regulations for the first time in 20 years. The current trade practice regulations, codified at 27 C.F.R. parts 6 (tied house), 8 (exclusive outlets), 10 (commerical bribery) and 11 (consignment sales), prohibit certain practices that threaten the independence of retailers and/or give the industry members an unfair advantage over their competitors.

The Alcohol and Tobacco Tax and Trade Bureau (TTB) recently proposed amendments to 27 CFR Part 4 that would allow winemakers to reference added distilled spirits on labels and in advertisements. Currently, wine labels and advertisements are prohibited from including statements indicating that a wine contains a distilled spirit unless the wine is required to bear a statement of composition which references the use of a distilled spirit. While this 1930’s prohibition sought to protect consumers from misinformation, the TTB acknowledges that as the wine industry has evolved, the regulation has become inconsistent with the TTB’s mission. Allowing this additional information provides manufacturers flexibility and empowers them to communicate with consumers more accurately about their wine products.

On May 26, 2022, the U.S. Food and Drug Administration (FDA) issued Warning Letters to four companies[1] concerning the illegal sale of unapproved animal drugs containing cannabidiol (CBD) intended for use in food-producing animals. These Warning Letters demonstrate the first time the FDA chose to focus on marketing CBD-containing products for use in food-producing animals, as opposed to pets, and the specific concerns related to such use. Food-producing animals, as defined by the FDA, include cattle (veal calves, beef cattle, and dairy cattle), swine, chickens, turkeys, and others (such as lambs).