Posts By Shook, Hardy & Bacon L.L.P.

A consumer has filed a putative class action alleging that Barilla America Inc. misleads consumers because its pasta sauces, which are labeled as including "No Preservatives," contain citric acid. Kubilius v. Barilla Am. Inc., No. 18-6656 (N.D. Ill., E. Div., filed October 1, 2018). The complaint contends that several authorities identify citric acid as a preservative, including "insiders in the preservative manufacturing and distribution industries" and the U.S. Food and Drug Administration, which allegedly "expressly classifies citric acid as a preservative in its Overview of Food Ingredients, Additives, and Colors." The plaintiff seeks class certification, damages, restitution, injunctions and attorney's fees for allegations of fraud and violations of New York and Illinois consumer-protection statutes.

A Colorado federal court has dismissed the U.S. Equal Employment Opportunity Commission's (EEOC's) lawsuit alleging JBS USA discriminated against Muslim workers by denying prayer breaks. EEOC v. JBS USA, No. 10-2103 (D. Colo., entered September 24, 2018). The court found that EEOC failed to prove that JBS suspended or fired the workers in an effort to deny requested religious accommodations. A Nebraska court dismissed similar claims against the company in October 2013.

The New York Times has reported on the Orthodox Union's efforts to determine whether meat grown in a lab from animal cells can be kosher. The reporter follows a rabbi tasked with researching the process. The rabbi distinguishes between products grown from muscle cells—which must be from an animal properly slaughtered in kosher standards rather than still alive—and products potentially grown from animal saliva or hair, which are reportedly under research. The latter products would not be considered meat under Jewish law, the New York Times notes. “The identity of a given cell, and ensuring that its identity is preserved and verifiable, would be crucial to our being able to certify a product,” the report quotes the rabbi as saying.

The U.S. Food and Drug Administration (FDA) has solicited public input on questions related to plant-based substitutes for dairy products such as almond or soy milk. The agency's request for information (RFI) seeks responses on three points: "How do you use plant-based products?" "What is your understanding of dairy terms like milk, yogurt and cheese when they are used to label plant-based products?" "Do you understand the nutritional characteristics of plant-based products? Do you know how they’re different from each other? Do you know how their nutritional qualities compare with dairy products?" "The RFI opened today is an important step in our efforts to take a look at how we have been applying the Food Drug and Cosmetic Act with respect to food names and our existing standards of identity," FDA Commissioner Scott Gottlieb said in a statement. "The comments we receive will help inform the development of draft guidance…

The U.K. Advertising Standards Authority (ASA) has upheld two complaints against Costa Coffee for a radio ad comparing the difficulty associated with the length of time for which an avocado is ripe—"sure, they'll be hard as rock for the first 18 days, three hours and 20 minutes, then they'll be ready to eat, for about 10 minutes, then they’ll go off"—to the ease of buying a breakfast sandwich at the coffee company's store locations. Two complainants argued to ASA that the ad "discouraged the selection of fresh fruit," and ASA agreed, finding that "comparisons between foods must not discourage the selection of options such as fresh fruit and fresh vegetables, which generally accepted dietary opinions recommended should form a greater part of the average diet." Upholding the complaints, ASA noted that, "although the ad was light-hearted, it nevertheless suggested avocados were a poor breakfast choice, and that a bacon roll…

U.S. Health and Human Services' National Toxicity Program has issued a research report on the toxicity of bisphenol A (BPA) in rats. The study "was designed to characterize and evaluate the toxicological potential of BPA following perinatal only or chronic exposure in rats under the conditions of a chronic, extended-dose response design." The report is one component of Consortium Linking Academic and Regulatory Insights on BPA Toxicity (CLARITY-BPA), which will issue a final report in the autumn of 2019 compiling the National Toxicity Program's results with reports from university researchers.

The U.S. Food and Drug Administration (FDA) has announced the results of its annual Pesticide Residue Monitoring Program. From samples collected between October 1, 2015, and September 30, 2016, the agency analyzed 7,413 samples and reportedly found that more than 99 percent of domestic and 90 percent of imported foods complied with federal standards. FDA also examined samples of corn, soybeans, milk and eggs and found zero samples that violated federal limits. FDA Commissioner Scott Gottlieb said in a statement, "Like other recent reports, the results show that overall levels of pesticide chemical residues are below the Environmental Protection Agency’s tolerances, and therefore don’t pose a risk to consumers.”

The 2014 Farm Bill has expired without an updated bill or stopgap measure in place. The U.S. House of Representatives rejected the proposed Agriculture and Nutrition Act of 2018, with detractors focused on changes to the Supplemental Nutrition Assistance Program. Funding for some programs will reportedly continue beyond the expiration date of September 30, 2018.

The U.S. Food and Drug Administration (FDA) has issued draft guidance on the release of retailer information during the food-recall process. The guidance indicates when the agency may find that identifying retailers is necessary during Class I recalls—"recalls where there is a reasonable probability that the use of, or exposure to, the food will cause serious adverse health consequences or death to humans or animals"—as well as a limited number of Class II recalls associated with foodborne illness outbreaks. "Assisting food producers in having effective recall practices in place, as well as taking immediate action to address unsafe products, are high priorities of mine," FDA Commissioner Scott Gottlieb said in a statement. "Our recall authorities – and how we deploy them – are a cornerstone of our vital consumer protection mission."

The Information Technology & Innovation Foundation (ITIF) has submitted a citizen petition to the U.S. Food and Drug Administration (FDA) challenging the use of labeling that asserts that products are free of genetically modified organisms (GMOs). "[T]he 'Non-GMO' Project's butterfly logo and language on consumer foods and goods misleads and deceives consumers through false and misleading claims about foods, food ingredients and their characteristics related to health and safety," the petition argues. ITIF urges FDA "to prohibit the use of the term 'Non-GMO' on consumer foods and goods" because it allegedly constitutes "misbranding under the law." ITIF objects to the Non-GMO Project's distinction between "natural" foods and those made with GMOs. "The techniques used to bioengineer crops and livestock to produce foods were discovered as natural phenomena, and the enzymes and reagents involved are all extracted or derived from sources in nature. While in vitro bioengineering methods may produce 'combinations…