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

The European Food Safety Authority (EFSA) has released a scientific report identifying potential areas of improvement in the agency’s emerging risks identification procedure. The report highlights “weaknesses with respect to data collection, analysis and integration” and suggests that broader analyses would improve the system. Recommendations include (i) integrating social sciences “to improve understanding of interactions and dynamics,” (ii) improving data processing pipelines and (iii) enhancing transparency and improving communication.

The U.K. Advertising Standards Authority (ASA) has again barred HJ Heinz Foods UK from airing a television commercial suggesting that the nutritional benefits of beans and a protein supplement are comparable. After ASA found that the ad made an unpermitted nutrition claim, Heinz changed a line in the commercial to reduce an implied comparison between the levels of protein, fiber and fat in a protein shake and a serving of beans. ASA found that the updated version of the ad continued to create the “overall impression” that the two products were comparable and banned the ad from running on television.

The Court of Justice for the European Union has held that techniques to edit an organism’s genes without inserting foreign DNA—such as CRISPR/Cas9—result in the creation of genetically modified organisms (GMOs) subject to the EU GMO Directive. Confédération paysanne v. Premier ministre, No. C-528/16 (CJEU, entered July 25, 2018). The plaintiff, a French agricultural union, argued that French legislation exempting organisms produced with mutagenesis techniques such as CRISPR from GMO regulation conflicts with EU legislation governing GMOs. The court found that the mutagenesis techniques “alter the genetic material of an organism in a way that does not occur naturally, within the meaning of that provision. It follows that organisms obtained by means of techniques/methods of mutagenesis must be considered to be GMOs within the meaning of [the GMO Directive].”

The U.S. Court of International Trade has approved a preliminary injunction preventing the importation of fish from Mexican commercial fisheries that use gillnets near where vaquitas are found. NRDC v. Ross, No. 18-0055 (Ct. Intl. Trade, entered July 26, 2018). The Natural Resources Defense Council (NRDC) filed the lawsuit to protect the remaining population—about 15—of the vaquita, a type of small porpoise. “It is undisputed that the cause of the vaquita’s precipitous decline is its inadvertent tangling, strangulation, and drowning in gillnets, which are fishing nets hung in the water to entangle fish and shrimp,” the court noted. “The Government of Mexico, which regulates fishing practices in the Gulf of California, has banned the usage of gillnets in certain fisheries within the vaquita’s range, though illegal gillnet fishing continues. In other fisheries, gillnet fishing remains legal. If current levels of gillnet fishing in the vaquita’s habitat continue, the species will…

A Nevada federal court has dismissed JL Beverage Co.’s trademark-infringement allegations against Beam Inc.’s Pucker Vodka. JL Beverage Co. v. Beam Inc., No. 11-0417 (D. Nev., entered July 23, 2018). The 2011 complaint, which alleged that Beam Inc.’s mark featuring a drawing of lips infringed on JL Beverage’s lip-imprint mark, was revived by the Ninth Circuit in 2016. In addition to arguing against the alleged infringement, Beam Inc. filed a counterclaim asserting that JL Beverage’s trademark should be canceled. The court was unpersuaded by JL Beverage’s arguments about consumer associations with the lip illustration. “Consumers do not refer to Johnny Love Vodka as ‘the lip vodka,’” the court noted. “JL Beverage offered evidence at trial that consumers refer to Johnny Love Vodka as ‘the lip vodka,’ but the Court did not find this evidence credible.” Further, “Consumers exposed to JL Beverage’s logo and marketing materials during the sponsorship events probably…

The Pennsylvania Supreme Court has affirmed a lower court’s ruling upholding Philadelphia’s tax on sugar-sweetened beverages (SSBs), holding that the tax is not preempted by state law. Williams v. Philadelphia, Nos. 2 EAP 2018, 3 EAP 2018 (Pa., entered July 18, 2018). The 1.5-cents-per-ounce tax, which took effect in January 2017, applies to SSB distributors rather than buyers and thus does not duplicate consumer sales tax, the court held.

Three plaintiffs have filed a projected class action alleging Trader Joe’s Co.’s “100%” Manuka Honey contains about 60 percent manuka honey. Moore v. Trader Joe’s Co., No 18-4418 (N.D. Cal., Oakland Div., filed July 20, 2018). The consumers allege that they paid a premium for the honey, which purportedly provides antibacterial benefits, because the jars were labeled as containing “100%” manuka honey and listing manuka honey as the sole ingredient. The complaint asserts that the plaintiffs’ testing found that the product “only contains between 57.3% to 62.6% manuka honey,” with other types of honey allegedly filling the remainder. The plaintiffs seek damages, class certification and attorney’s fees for alleged violations of California’s, North Carolina’s and New York’s consumer-protection statutes.

Diamond Foods LLC faces a putative class action alleging Kettle Foods potato chips are marketed as “Made with Natural Ingredients” and “No Preservatives” but contain citric acid. Mason v. Diamond Foods LLC, No. 18-6423 (S.D.N.Y., filed July 16, 2018). The complaint identifies several flavors of chips that allegedly contain the “synthetic compound,” purportedly produced from mold strains and sulfuric acid. Claiming violations of several states' consumer-protection statutes, the Magnuson-Moss Warranty Act, breach of warranties and common law fraud, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.

International Dairy Queen Inc. faces a potential class action alleging it violated consumer-protection laws with a “bait-and-switch” scheme by advertising a free Blizzard without verifying that all store locations would honor the coupon. Spencer v. Int’l Dairy Queen, Inc., No. 18-1252 (D. Ore., filed July 13, 2018). The complaint alleges that the plaintiffs viewed an advertisement promising a "special treat for fans with our new mobile app," which displayed a coupon for a free small Blizzard, directed users to choose a store location and displayed a promotional code valid for 15 minutes. The complaint contends that hundreds of people posted online comments complaining that several locations refused to honor the coupons. Claiming violations of Oregon’s Unlawful Trade Practices Act and unjust enrichment, the plaintiff seeks damages, restitution, attorney’s fees and a judgment against Dairy Queen “for the monetary value of at least five Blizzards per class member.”