Contending that Diamond Foods, Inc. has defended its decision to place “heart-healthy” claims on its packaged walnuts on the advice of counsel, and removed them after a Food and Drug Administration (FDA) warning, also on the advice of counsel, the named plaintiff in a putative class action alleging consumer-fraud against the company is seeking the production of attorney-client communications. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., filed April 26, 2011). Details about a court order denying the defendant’s motion to dismiss appear in Issue 363 of this Update. The plaintiff points to instances in responses to interrogatories and deposition questions where the company defended its decision to link the omega-3 fatty acids in walnuts to heart health as a good faith bona fide error and indicated that decisions about the labeling were made with legal counsel’s approval. Yet, the company has refused to produce any attorney-client communications on…
Tag Archives omega-3
An organization that promotes family-scale farming and organic foods has called on the Federal Trade Commission (FTC) to investigate Dean Foods, which purportedly claims that its Horizon “milk with Omega-3 DHA” products support brain and eye development in children and benefit pregnant and nursing women. In its April 21, 2011, letter, the Cornucopia Institute details the company’s allegedly false and misleading claims “targeted to pregnant women and children” and urges the agency to enjoin the company, if appropriate, to prevent further false and misleading marketing claims. According to the institute, the company is also promoting its Horizon milk as “natural nourishment . . . without the additives you’d rather avoid,” despite using a DHA oil that is “an extract from mutated and fermented algae that have never been part of the human diet.” The letter notes that in 2004 FTC questioned whether the company that makes the DHA supplements added…
Researchers presenting at the 2011 Experimental Biology conference in Washington, D.C., have reportedly claimed that stearidonic acid-enriched (SDA) soybean oil is “an effective source of long-chain polyunsaturated fat in foods,” and that soy genetically engineered to produce these omega-3 fats, commonly found in fish, could be on tables as early as 2012. The panel on SDA-enriched soy was evidently part of the meeting’s omega-3 symposium led by Tufts University Friedman School of Nutrition and Public Health Dean Eileen Kennedy, who noted that the American diet is typically lacking two long-chain omega-3s, eicosapentaenoic acid (EPA) and docosahexaenoic acid (DHA), in part because consumers are wary of methyl mercury warnings for seafood. “Against this backdrop, SDA-enriched soybean oil is very attractive,” Kennedy apparently told Science News. “Moreover, if and when SDA-enriched oil becomes available, it should cost less than fish-oil capsules (some of which have allegedly been found contaminated with pesticides, dioxins and…
A federal court in California has denied a walnut producer’s request to dismiss claims alleging that the company falsely advertises its products by asserting that the omega-3 in walnuts has certain health benefits. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., filed September 3, 2010) (unpublished). Alleging violations of California consumer protection laws, the plaintiff claims that the “statements are misleading because the Shelled Walnut products do not provide the health benefits claimed on the package labels.” The defendant argued that the plaintiff’s claims were preempted by the Federal Food, Drug, and Cosmetic Act and Nutrition Labeling and Education Act. The court disagreed, finding neither express nor implied preemption. According to the court, the claims either did not fall within the scope of federal law or state law imposed identical requirements, which are allowed under federal law.
A New York resident has filed a putative class action against Diamond Foods, Inc. in a California federal court alleging that the company labeled its walnuts with false claims that “consumption of the omega-3 fatty acids in walnuts promotes heart health and lowers the risk of coronary heart disease.” Zeisel v. Diamond Foods, Inc., No. 10-1192 (N.D. Cal., filed March 22, 2010). The plaintiff seeks to certify a nationwide class of consumers who purchased the company’s shelled walnut products since March 19, 2006, and claims that he relied on the product labels to make his purchasing decision. The complaint alleges unlawful, unfair and fraudulent business practices; false advertising; violation of California’s Consumer Legal Remedies Act; and unjust enrichment. The plaintiff seeks an order certifying the class, restitution of either the amounts paid to purchase the products or the company’s profits from the transactions, an order enjoining further misleading advertisements, attorney’s…
A putative class action has been filed in a Washington state court by plaintiffs claiming that L’il Critters Omega-3 Gummy Fish® are deceptively marketed as products that will “Promote Healthy Brain Function” in children. Aust v. NW Natural Prods., Inc., No. 10-07949 (Wash. Super. Ct., King Cty., filed February 23, 2010). In fall 2009, the Federal Trade Commission (FTC) warned the defendant that its claims may violate federal false advertising laws, and the company modified its marketing materials. Additional information about the FTC’s actions on products with omega-3 related claims appears in issue 338 of this Update. Seeking to represent a class of all Washington residents who have purchased the company’s omega-3 gummy fish products, the plaintiffs allege violations of Washington’s consumer protection act, breach of warranties, conversion and unjust enrichment. They seek a class certification order, a declaration that the company’s conduct was unlawful, actual damages, statutory damages including treble…
The Global Organization for EPA and DHA Omega-3 Fatty Acids (GOED) has apparently sought clarification from the Federal Trade Commission (FTC) about the letters sent to 11 companies that promote omega-3 fatty acid supplements as a benefit for children’s visual and mental development. According to GOED, FTC was not clear about whether it was concerned with claims on products containing short-chain omega-3 fatty acid (ALA) or long-chain omega-3 fatty acids (EPA and DHA). The organization also questioned FTC about the types of scientific studies that would be required to substantiate the claims. FTC reportedly told GOED that “claims about an effect (e.g. brain development) need to be substantiated by science on that effect (e.g. brain development)” and that the scientific evidence in support of a claim must be based on research conducted in the age specified in the claim. “That is, if the claim is specific to toddlers two years and…
The Federal Trade Commission (FTC) recently announced that it had sent warning letters to 11 companies that promote omega-3 fatty acid dietary supplements. The letters indicated that the companies should review their product labeling and packaging claims, as well as product advertising, to ensure that the claims are adequately substantiated. The commission’s issuance of these letters is significant because of the FTC’s action to regulate dietary supplement labeling claims, an area that has for nearly four decades been regulated by the Food and Drug Administration (FDA). Commission Takes Aim at Ad Links Between Omega 3 and Children’s Visual and Mental Development According to a February 16, 2010, press release, [FN 1] the FTC’s Division of Advertising Practices in January sent warning letters to 11 companies that promote supplement products containing omega-3 fatty acids intended for use by children ages 2 years and older. The letters reference an investigation the FTC conducted…
The Federal Trade Commission (FTC) has announced that it sent letters to 11 unnamed companies in late January 2010, warning that their promotions and product packaging for omega-3 fatty acid supplements may violate the law “by making baseless claims about how the supplements benefit children’s brain and vision function and development.” FTC apparently gave the companies until February 8 to respond and explain what they have done or will do to ensure they are complying with the law, that is, that their health-related claims “are substantiated.” FTC provides as an example of substantiation “well-conducted, clinical cause-and-effect studies demonstrating that the use of the combination of Omega-3 fatty acids provided in Product X, in the same dosage as provided by one serving of the product, improves or promotes brain function, cognitive function, attention span, intelligence, memory, learning ability, and visual acuity in normal children ages 2 years and older.” The agency…
A putative class action was reportedly filed in a California state court against Nestlé, alleging that the company falsely advertises its “Juicy Juice Brain Development Fruit Juice” as a product that will improve toddlers’ brain function. Plaintiff Alexis Farmer, who then dismissed the complaint without prejudice several days later, reportedly claimed that she purchased the company’s juice relying on labeling and advertisements stating that it contained DHA Omega-3, a “fatty acid especially important for brain development in children under two years old.” Farmer was seeking damages and injunctive relief; her complaint apparently alleged false and misleading advertising, unjust enrichment, fraud, and civil code violations. See Courthouse News, September 23, 2009. In a related development, Health Canada has apparently decided not to stop infant-formula manufacturers from claiming that DHA, in any amount, will support normal brain and eye development, particularly for children under two. The Canadian Food Inspection Agency asked the…
