Shook Partner Cary Silverman has authored an article for the University of Cincinnati Law Review arguing for a consistent application of the "reasonable consumer" standard in food and beverage litigation. Describing frequent litigation targets such as foods labeled as "natural" and packages containing "excessive slack fill," Silverman explains that in some cases, "a plaintiff's alleged understanding of a product’s marketing is simply contrary to nature or reality." For example, he notes, a complaint alleging that Kind's Vanilla Blueberry Clusters were mislabeled as containing "no refined sugars" was dismissed because no reasonable consumer would interpret the label as meaning raw sugar cane, which is "a grass that contains joined stalks resembling bamboo … surrounded by bark." However, Silverman explains, some courts apply the reasonable consumer standard differently, allowing putative class action complaints to pass through the motion-to-dismiss stage, prompting settlement discussions between the parties. "In slack fill litigation, some courts have…
Category Archives Issue 693
The U.S. Food and Drug Administration (FDA) has announced the availability of two draft guidance documents involving standards for produce. One draft guidance "provides a broad range of recommendations on how to meet the requirements" for growing produce and "outlines how to determine whether produce or farms may be eligible for exemptions." The second guidance focuses on fresh-cut produce and methods for minimizing food-safety hazards. Comments on both guidance documents will be accepted until April 22, 2019.
The U.S. Department of Justice has announced that StarKist Co. has agreed to plead guilty to charges alleging the company conspired to fix prices of packaged tuna. The company will face a fine of up to $100 million. "Our citizens' confidence in the ability to buy goods within an unbiased market is key to sustaining an efficient and fair economy,” a press release quotes a special agent as saying. “This investigation stands as a symbol of our commitment to holding corporations and senior leadership accountable and ensuring that activities such as price fixing will not be tolerated.”
The National Advertising Division (NAD) has referred The a2 Milk Company's claims that its products are "easier on digestion" to the U.S. Federal Trade Commission (FTC). The National Milk Producers Federation challenged the milk marketing, asserting "errors in study design, methodology, and population selection" as well as arguing that the results of the company's study are "clinically insignificant." The a2 Milk Company responded that the organization "selectively presents incomplete and outdated research and observations made without the benefit of recent research" but declined to participate further in the system of self-regulation.
Edible cottonseeds have been approved for commercial cultivation by the U.S. Department of Agriculture and await Food and Drug Administration approval, according to Bloomberg. Texas A&M University has reportedly been developing the product—which apparently tastes "like hummus"—for more than two decades. Bloomberg compares the nutritional value of cottonseeds to other tree nuts such as almonds or walnuts; in addition, cottonseeds could be "fed to carnivorous fish like salmon and trout that eat ground-up fish," according to the article. The university's work “opens up the opportunity that eventually every cotton plant will have this technology in it,” a vice president at Cotton Inc. reportedly told Bloomberg. “There’s no reason to leave a toxin in a domesticated plant.”
