May 7, 2010
Free Samples, Taste Tests, And The Law
Free Samples, Taste Tests, And The Law Cliff Ennico www.creators.com "I am in the process of starting a specialty foods business with a focus on high-quality baked goods. As part of my market research, I plan to host 'taste testings' in my home, at local fairs and church functions, and eventually in supermarkets and local gourmet stores. Is there anything I can do to limit my liability in case somebody gets sick? I'm especially concerned about people with food allergies who don't realize it until it's too late." Sooner or later, every specialty foods business has to learn a bit about taste testing, as it's often the best way to predict the market success of any new food product. Simply put, people won't buy a food product unless it tastes at least somewhat good. And they don't know if something tastes good if they don't try it first. Just remember that whenever you put ANY product out into the marketplace - even just for testing - product liability law comes into play. Basically, you have two things to do here. The law requires you to KNOW if any of your ingredients, or the manner in which you cook or bake something, poses a health or safety risk before you put it out for market testing of any kind. And, if it does, you must make a reasonable effort to WARN consumers about the risks before they try it. First of all, I wouldn't do any taste testings out of your home, because inviting total strangers into your home FOR ANY REASON is usually a bad idea. You just don't know about some people - they give you good feedback about your product, but then later that evening you notice some precious knickknacks have gone missing. Also, doing product testing out of your home doesn't exactly send the signal that you are a serious business. You're on stronger ground with the local fairs and church functions. Here are some rules: make sure your packaging is professionally done, and meets all federal, state and local labeling laws - to learn more about these, go to www.cfsan.fda.gov/label.html ; you have to be especially careful when listing your ingredients - too much detail and you've given away your recipe, too little and you haven't sufficiently warned people with food allergies (for help with disclosure laws regarding the most common allergens, go to www.foodallergy.org/advocacy/labeling.html ); make sure to state clearly, both on the label and verbally to each "taster", if there are any ingredients (such as peanuts or gluten) that you know a significant number of people in your community are allergic to; most attendees at street fairs and church functions won't sign liability releases, but you CAN give each "taster" a one-page flyer about your products (perhaps with a coupon towards a future purchase) that contains all of your liability disclaimers and warnings; and if you yourself do not know the Heimlich maneuver, make sure there is someone nearby who does (please don't laugh - when people are eating and giving you verbal feedback at the same time there is a greater than usual choking risk). "I've created a new product, and want to offer it free on my Website to get people excited about it. Any ideas on how to do that legally?" Offering free samples of your product is a great way to generate "buzz" in the marketplace, but it can easily be abused by greedy consumers and, again, the product liability laws apply. Here are some tips: make sure your samples use your standard packaging, and include any appropriate legal disclaimers (for example, "NOT A TOY - may be a choking hazard to children under 10"); limit your samples to "one per customer", and build in some controls so you can determine if some crazy person is ordering 50 free samples one at a time; be sure to state clearly on your sample "for promotion purposes only - not for resale" - and be sure to check eBay every once in a while to make sure your samples haven't been "repurposed"; condition your sample on some marketing feedback from the customer, or offer him something else if he answers a short questionnaire about the sample; consider using one of the better known "freebie" Websites, such as www.all-free-samples.com and www.thefreesite.com , to push your product samples - these sites already have all the necessary controls in place to prevent sample abuse, and for a small fee will help you target your market research in a more effective way than just offering free samples on your Website will. Cliff Ennico ( cennico@legalcareer.com is a syndicated columnist, author and host of the PBS television series 'Money Hunt'. His latest books are 'Small Business Survival Guide' (Adams Media, $12.95) and 'The eBay Seller's Tax and Legal Answer Book' (AMACOM, $19.95). This column is no substitute for legal, tax or financial advice, which can be furnished only by a qualified professional licensed in your state. To find out more about Cliff Ennico and other Creators Syndicate writers and cartoonists, visit our Web page at www.creators.com . COPYRIGHT 2007 CLIFFORD R. ENNICO. DISTRIBUTED BY CREATORS SYNDICATE, INC. Permission granted for use on DrLaura.com.

Posted by Staff at 1:50 AM