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A New York federal court has dismissed a consumer’s lawsuit alleging Mondelez International sells its Sour Patch Watermelon candy with unpermitted slack fill. Izquierdo v. Mondelez Int’l Inc., No. 16-4697 (S.D.N.Y., order entered October 26, 2016). The lead plaintiff had asserted that the box he purchased contained 28 pieces of candy but had enough space for 50 pieces. Additional details about the complaint appear in Issue 609 of this Update. After finding that the plaintiff did not have standing for an injunction, the court turned to the candy company’s arguments, dismissing its assertion that the accurate net weight released it from liability. Further, the court found it inappropriate to consider at the motion-to-dismiss stage whether a consumer could determine the contents of the package by shaking or squeezing it. The court was persuaded by Mondelez’s argument that the plaintiffs had failed to state a claim because they did not clarify what…

A D.C. federal court has denied McCormick & Co.’s motion to dismiss a competitor’s lawsuit alleging the company’s black pepper packaging contains too much slack fill. In re McCormick & Co., Inc., Pepper Prods. Mktg. & Sales Practices Litig., No. 15-1825 (D.D.C., order entered October 17, 2016). The lawsuit is part of multidistrict litigation joining several consumer class actions with similar allegations. McCormick challenged Watkins Inc.’s standing to sue and asserted that the company failed to state a claim under the Lanham Act, arguing that its packaging does not constitute advertising. The court disagreed, noting, “McCormick argues that size of its pepper tins is not commercial speech, but it is difficult to understand how the size of a package or container could possibly not be considered a form of ‘advertising or promotion.’ [] The size of a package signals to the consumer vital information about a product and is as…

Members of the European Parliament have backed by a 559 to 31 vote, with 26 abstentions, a non-binding resolution asking the EU to “further harmonize the safety requirements for food contact materials [FCMs], which are largely used in everyday life in the form of food packaging, kitchen utensils and tableware.” According to a news release, “Only four out of listed 17 food contact materials are currently covered by specific safety measures foreseen in existing EU framework legislation: plastics, ceramics, regenerated cellulose and ‘active and intelligent’ materials.” In particular, the report on the implementation of the Food Contact Materials Regulation ((EC) No 1935/2004) calls on the Commission to consider identifying bisphenol A (BPA) as one of the substances classified as a substance of very high concern (SVHC) under REACH regulations. It also asks the European Commission to prohibit the use of bisphenol S (BPS) in FCMs “as a substitute for Bisphenol…

France has reportedly passed a ban on plastic cups, knives, forks and plates as part of an ecological initiative, Energy Transition for Green Growth. The prohibition, which takes effect in 2020, targets the nearly 5 billion plastic cups discarded annually in France. The country is reportedly the first to target plastic dishware. A Brussels-based organization representing European packaging manufacturers, Pack2Go Europe, has reportedly vowed to fight the ban to prevent similar measures from passing in other European countries. “We are urging the European Commission to do the right thing and to take legal action against France for infringing European law,” Pack2Go Europe Secretary General Eamonn Bates told The Associated Press. “If they don’t, we will.” See Associated Press, September 12, 2016; The Local, September 13, 2016.   Issue 617

A consumer has filed a putative class action alleging that EN-R-G Foods’ Honey Stinger Gluten Free Organic Maple Waffles do not contain maple syrup as implied by the product’s name and packaging. Johnson v. EN-R-G Foods, No. 6258 (C.D. Cal., filed August 19, 2016). The waffle package features “a prominent image of a maple leaf and maple syrup splashed on the waffle,” leading consumers to believe that the product ingredients include maple syrup, the plaintiff asserts. For allegations of fraudulent inducement, unjust enrichment and violations of California law, he seeks class certification, damages, an injunction and attorney’s fees.   Issue 615

The Children’s Advertising Review Unit (CARU) has advised Kellogg Co. to revise the packaging for Fruit Flavored Snacks, recommending against statements that the product is “made with real fruit.” The front of the package featured cartoon characters and the statement “made with real fruit” superimposed on the image of an apple. The side panel clarified that the snacks are “made with equal to 20% fruit.” Based on a typical child’s interpretation of the message, CARU found that children may be confused because “although the fruit flavored snacks were made with fruit puree concentrate, at the end of the process, only a very small amount of actual fruit puree concentrate was included in each serving of the product.” In a statement, Kellogg indicated that it disagreed with CARU’s findings but would modify the language and remove the apple logo in deference to the self-regulatory process.   Issue 614

The U.S. Food and Drug Administration (FDA) has filed an opposition to a petition for a writ of mandamus seeking a response to several consumer groups’ petition to prohibit perchlorate, an additive currently approved for limited use in food packaging. Breast Cancer Fund v. FDA, No. 16-70878 (9th Cir., petition filed July 8, 2016). The groups’ petition urged the Ninth Circuit Court of Appeals to compel FDA to respond to their December 2014 food additive petition, arguing the agency was required to respond by June 2015. Details about the petition for a writ of mandamus filed by the groups—which include the Center for Environmental Health, Center for Food Safety, Center for Science in the Public Interest, Environmental Working Group and the Natural Resources Defense Council—appear in Issue 599 of this Update. FDA’s response first challenges the group’s standing to sue. “Even if petitioners could demonstrate that perchlorate poses some risk…

Diageo will reportedly provide nutritional information on its alcohol product packaging, beginning with Johnnie Walker® Red Label. Changes to Smithwick’s® and Guinness® packaging will follow. The global label will reportedly include the product’s alcohol by volume, serving size, calorie and sugar content and allergens, while the U.S. label will mimic the Nutrition Facts panel format regulated by the U.S. Food and Drug Administration. In a June 30, 2016, press release, a Diageo official said the change is “based on what consumers want,” noting, “Current labeling on most alcoholic beverages does not reflect how people consume alcohol and therefore does not allow consumers to understand how much alcohol is in their favorite drink or what is in their glass.” See Forbes, June 30, 2016.   Issue 610

The Environmental Working Group (EWG) has launched what it describes as “the first easily, searchable database of nearly 16,000 processed food and drinks packaged in materials that may contain the hormone-disrupting chemical bisphenol A, or BPA.” According to EWG, the new database organizes information obtained from a food industry website into a list of products that users can search from EWG’s Food Scores application. “The industry website’s apparent main purpose is to help food companies supply warning signs to retailers,” states EWG in a June 17, 2016, press release. “It reveals that Americans are far more widely exposed than previously known to a hormone-disrupting industrial chemical that poses greatest risk to pregnant women, infants and children. But the website is a chaotic jumble––incomplete, inconsistent, poorly organized and hard to use.” EWG claims that its BPA database features 926 brands linked to 16,000 products, “including more than 8,000 soup, vegetable, sauce…

The U.S. Food and Drug Administration (FDA) will reconsider how “healthy” may be used on food packaging following the evaluation of a citizen petition filed by Kind LLC. FDA previously challenged Kind’s use of “healthy” on its nut bars, which contain more fat than permitted due to the inclusion of nuts, and Kind changed its packaging accordingly but filed a petition for reconsideration of the issue. The existing guidelines were created during the 1990s and reflect accepted standards of that time, including a preference for foods low in fat without regard to the nature of the fat. FDA has now allowed Kind to use “healthy and tasty” on its packaging “only in text clearly presented as its corporate philosophy, where it isn’t represented as a nutrient content claim, and does not appear on the same display panel as nutrient content claims or nutrition information.” Further details about the dispute appear…

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