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

One day after the U.S. Food and Drug Administration (FDA) issued draft guidance on proposals to expedite product warnings and recalls, FDA and other health officials testified before the House Subcommittee on Oversight and Investigations about the results of an audit faulting the agency for the failure of the recall process to ensure food safety. Conducted by the Office of Inspector General of the Department of Health and Human Services, the audit identified a two-month average delay between when FDA notified companies of issues and when companies took action. During the hearing, Rep. Greg Walden (R-Ore.) reportedly displayed a snack container he had brought to a 2009 hearing on a nationwide Salmonella outbreak traced to products manufactured by the Peanut Corp. of America (PCA). PCA executives are serving federal prison terms for their roles in the outbreak, and a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit…

Panera Bread has reportedly petitioned the U.S. Food and Drug Administration (FDA) to establish a clear definition of the term “egg” after learning that agency rules dictate that “no regulation shall be promulgated” to define eggs. The company asserts that under existing regulations, restaurants can sell processed substances containing artificial flavorings, gums, coloring and fillers as "eggs." Panera’s director of wellness and food policy said in a press release, “Panera and our competitors use the FDA definitions to guide our product descriptions and names. But in the case of ‘eggs,’ we have no guidance. Brands can say they offer an egg sandwich, but sell an egg product that contains multiple additives.”

An Illinois federal court has dismissed a franchisee’s lawsuit alleging KFC wrongfully prevented him from advertising halal chicken, finding the franchise contract gave KFC control over advertising and promotional material. Lokhandwala v. KFC Corp., No. 17-5394 (N.D. Ill., entered January 23, 2018). Although the plaintiff alleged that KFC's prohibition on advertising dietary claims contradicted the earlier representations KFC had made to him, the court found that the franchise agreement gave KFC express power to change its advertising policies. In particular, the contract stated that “[n]o failure, forbearance, neglect or delay of any kind or extent on the part of KFC in connection” with enforcing and exercising its rights “shall affect or diminish KFC’s right to strictly enforce . . . this Agreement at any time.” The court ruled that given the contract’s “unambiguous language on advertising” as well as its integration clause, it would not consider extrinsic evidence of KFC’s…

A New York federal court has held that a vegetarian who alleged Buffalo Wild Wings charged a premium price for non-meat food items fried in beef tallow failed to plead any injury in her complaint because loss of the purchase price does not constitute “actual injury” under state consumer-protection law. Borenkoff v. Buffalo Wild Wings, No. 16-8532 (S.D.N.Y., entered January 19, 2018). Although it was a “close call,” the court held that the plaintiff had standing to sue, finding “some ‘concrete and particularized’ injury in paying for one item and receiving another, even if you ultimately receive the ‘benefit of your bargain’ from a purely objective economic standpoint.” However, the alleged economic injury was insufficient to state a claim, the court held, because the plaintiff failed to explain “exactly how” the cost of the food was affected by the use of beef tallow or why she believed she paid a premium.…

Amazon has opened Amazon Go, a grocery store using artificial intelligence (AI), prompting speculation about its potential effects on the labor market, worries about consumer privacy and skepticism about how well it will work. Shoppers scan a smartphone app at a turnstile as they enter, then items are added to a virtual shopping cart as shoppers pull them off the shelf. If the shopper puts the item back on a shelf, the item is deleted from the cart. When shoppers leave the store, their credit cards are charged for the total. The store reportedly uses machine learning algorithms and computer-vision image processing along with weight sensors, camera-friendly bar codes and infrared sensors to track products as they leave shelves and the store. The store's technology hit speed bumps before its unveiling. Amazon Go’s opening was delayed by a year as the company fine-tuned and tested the technology; among early bugs was…

A New Jersey federal court has denied class certification to a group of consumers alleging that Tropicana Pure Premium orange juice was mislabeled and misbranded because the maker adds natural flavoring to the product in violation of the U.S. Food and Drug Administration's standard of identity for pasteurized orange juice. In re Tropicana Orange Juice Mktg. & Sales Practices Litig., No. 11-7382 (D.N.J., entered January 22, 2018). The court ruled that the plaintiffs’ unjust enrichment, express warranty and New Jersey Consumer Fraud Act claims required individualized proof; thus, individual issues predominated over those of the class. In addition, the plaintiffs were unable to demonstrate that the proposed class was ascertainable—in particular, the court found, it was unclear whether any of the “dozens, if not hundreds of retailers” could confirm with certainty whether they possessed consumer data for the class period. If a consumer purchased the juice from a retailer that…

A California federal jury has awarded $710,001 to Grumpy Cat Ltd., which had alleged that a beverage company infringed its copyright and trademarks. Grumpy Cat Ltd. v. Grenade Beverage LLC, No. 15-2063 (C.D. Cal., verdict entered January 23, 2018). The dispute arose after Grumpy Cat licensed its trademark to Grenade  Beverage LLC for a line of iced-coffee products; Grumpy Cat filed suit when it learned that Grenade was also using Grumpy Cat’s likeness on coffee products and apparel—which fell outside the scope of the companies' agreement—and had registered the domain name grumpycat.com. The jury awarded Grumpy Cat $1 for breach of contract and $710,000 for copyright and trademark violations. The parties agreed before trial that the court would rule on the cybersquatting and accounting claims as well as Grenade’s counterclaims for declaratory relief for ownership and non-infringement of trademark, copyright and domain name.

Iceland has filed a notice of opposition to a trademark application filed by an Ecuadorean company for use of the mark “I ' CELAND” for vodka, arguing that consumers will be confused as to the origin of the product, which features a label with images of snow-capped mountains and the term “Iceland Vodka.” Republic of Iceland, Ministry for Foreign Affairs v. Cosmica Cia. Ltda., No. 91239021 (T.T.A.B., notice filed January 17, 2018). Iceland’s Ministry for Foreign Affairs coordinates the exports of Icelandic businesses and alleges it is responsible for protecting the “Iceland” mark, which has been used for various Icelandic alcohol products, including vodka. Iceland registered its mark with the U.S. Patent and Trade Office in 2009.

From the rise in food allergies to the changing economics of agriculture and animal husbandry, documentary series “Rotten” examines a range of factors that affect the food and beverage industry. Episodes include "Lawyers, Guns & Honey," which explores how foreign honey enters the U.S. market; "Big Bird," which documents the effects of JBS' purchase of Pilgrim's Pride on U.S. poultry farmers; and "Milk Money," which examines the benefits and risks linked to the sale of raw milk. The final episode, "Cod is Dead," details the effects of catch limits on commercial fisheries and reviews the case of Carlos Rafael, the "Codfather." Since the release of "Rotten," the National Oceanic and Atmospheric Administration has reportedly sought to prevent Rafael and his businesses from reentering the fishing industry after he is released from prison.

A group of organic food producers, retailers and certifiers has published a full-page advertisement in The Washington Post containing the text of a letter to Secretary of Agriculture Sonny Perdue expressing the group’s objection to the withdrawal of the Organic Livestock and Poultry Practices Rule. In the letter, the group says the elimination of the rule is “an affront to the many people and organizations engaged in a multi-year, transparent, and highly participatory process that resulted in an animal welfare standard overwhelmingly supported by organic farmers, organic companies, humane animal care advocates, and consumers . . . . Eliminating the rule not only fails to acknowledge innovation in the organic farming sector and provide fair and transparent rules, it also undermines the faith people have in how organic agriculture is governed.” The letter had 25 signatories, including Organic Valley, Whole Foods Market, the Union of Concerned Scientists, the Humane Society of…

Close