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An Oregon federal court has dismissed a lawsuit alleging Gerber’s Graduates® Puffs is mislabeled because its packaging displays fruits and vegetables not contained in the product. Henry v. Gerber Prods. Co., No. 15-2201 (D. Ore., order entered April 18, 2016). The court first denied the plaintiff’s request to remand the case to state court, then turned to Gerber’s motion to dismiss the claims based on preemption by the federal Food, Drug, and Cosmetic Act. Gerber argued that U.S. Food and Drug Administration (FDA) regulations allow the company to provide visual depictions of the product’s “‛characterizing flavor,’ even if the product does not actually contain any of the depicted fruit, or indeed any fruit at all.” The court agreed, finding that the law is “clear,” even if the “wisdom of the FDA’s regulations on this topic is a different question for a different day.” The court dismissed the case but granted…

A California federal court has dismissed a lawsuit alleging that Diageo PLC misrepresents Red Stripe® beer as brewed in Jamaica, finding “no reasonable consumer would be misled into thinking that Red Stripe is made in Jamaica with Jamaican ingredients based on the wording of the packaging and labeling.” Dumas v. Diageo PLC, No. 15-1681 (S.D. Cal., order entered April 6, 2016). Details about the complaint appear in Issue  574 of this Update. Bottle trays for six and 12-packs of Red Stripe® include, as the court explained, “the language ‘Jamaican Style Lager and ‘The Taste of Jamaica,’” the Diageo-Guinness USA logo and a disclaimer on the bottom of the packaging that states, “Brewed and bottled by Red Stripe Beer Company Latrobe, PA.” Citing a Second Circuit opinion finding that the description of a knife as a “Swiss Army knife” does not imply it was made in Switzerland, the court found that the “mere…

Several consumer organizations, including the Center for Food Safety, Environmental Working Group and Natural Resources Defense Council, have filed a petition for a writ of mandamus in the U.S. Court of Appeals for the Ninth Circuit seeking a writ compelling the U.S. Food and Drug Administration (FDA) to address the groups’ administrative petition filed in December 2014. Breast Cancer Fund v. FDA, No. 16-70878 (9th Cir., petition filed March 31, 2016). FDA missed a June 2015 deadline to respond to the groups’ petition, which implored FDA to rescind foodcontact approval for perchlorate, “an endocrine-disrupting chemical that interferes with the thyroid gland” used in food packaging. “Perchlorate is primarily used in rocket fuel. There is no reason FDA should allow a chemical like this in or on food products,” Andrew Kimbrell, executive director of Center for Food Safety, said in a March 31, 2016, press release. “It is irresponsible, illegal, and…

The California Environmental Protection Agency’s (Cal/EPA’s) Office of Environmental Health Hazard Assessment (OEHHA) has announced the development of hazard identification materials for nickel and nickel compounds, perfluorooctanoic acid (PFOA) and its salts, and pefluorooctane sulfonate (PFOS) and its salts to assist in the agency’s consideration of the chemicals for possible listing under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Food is a major source of nickel exposure, with an average intake for adults estimated to be approximately 100 to 300 micrograms per day (µg/d), while PFOA and PFOS are chemical compounds that have been widely used in commercial and industrial applications, including food packaging and water-resistant coatings. OEHHA specifically seeks data relevant to assessing the chemicals’ reproductive toxicity for evaluation by the Developmental and Reproductive Toxicant Identification Committee. Comments are due by April 4, 2016. See OEHHA News Release, February 19, 2016.   Issue 594

The European Food Safety Authority’s (EFSA’s) Panel on Food Contact Materials, Enzymes, Flavorings and Processing Aids (CEF Panel) has issued a scientific opinion recommending revisions to the safety assessments conducted for food contact materials (FCM). After considering scientific comments received during public consultation, the CEF Panel advocates new standards for estimating food intake and calculating the level of FCM migration into food. The scientific opinion also finds that genotoxicity testing for FCM substances should be mandatory even in low-exposure scenarios, and that nanomaterials used in FCM should be evaluated on a “case by case” basis. To address different consumption scenarios, the CEF Panel divided foods into four categories based on exposure data extrapolated from EFSA’s Comprehensive European Food Consumption Database as well as “default water consumption figures set by the World Health Organization (WHO) for infants.” For each of these food categories, the panel identified the “critical” age group with…

Plain food packaging for snack foods decreases purchase intention and brand perception but increases actual consumption among some consumers, according to French and Belgian researchers. Carolina O.C. Werle, et al., “Is plain food packaging plain wrong? Plain packaging increases unhealthy snack intake among males,” Food Quality and Preference, December 2015. Billed as the first to examine “the impact of plain packaging on consumers’ perceptions and actual consumption of unhealthy food items,” the study used brand- and plain-packaged M&M’s® to explore the effects of plain packaging on (i) product and brand attitudes as well as the intention to consume an unhealthy snack, (ii) food intake once consumers have sampled the product, and (iii) food intake when plain packaging is combined with low-fat claims. The results evidently indicate plain food packaging “negatively impacts product and brand attitudes as well as intention to consume an unhealthy snack when consumers only evaluate the packaging.”…

The National Advertising Division (NAD), an investigative unit of the U.S. advertising industry’s system of self-regulation, has referred to the U.S. Food and Drug Administration (FDA) and Federal Trade Commission (FTC) an ad campaign for Danisa “Traditional Butter Cookies,” which are manufactured by the Mayora Group in Indonesia and distributed by Takari International, Inc. NAD evaluated the campaign in April 2015 after Campbell Soup Co. challenged several aspects of the product’s marketing, including the claim that the cookies are “produced and packed in Denmark” and “baked following the original recipe from Denmark,” as well as the use of Scandinavian imagery. Further, Campbell argued that FDA requires any product labeled as “Butter Cookies” to use only butter as a shortening ingredient, but multiple independent studies have shown the presence of a non-butter fat ingredient in the Danisa product. Takari International argued it could not be liable for packaging claims or discrepancies…

After a review by the National Advertising Division (NAD), the advertising industry’s self-regulation investigative arm, Gobble, Inc. has agreed to discontinue claims that packaging for its meal-delivery services is “eco-friendly.” NAD requested substantiation for several claims appearing on Gobble’s website, including the company’s use of “insulated liners that are biodegradable so that you can dispose of them in your trash with minimal impact on the environment.” In response to the inquiry, Gobble stated it would permanently and voluntarily withdraw its packaging claims of biodegradability and eco-friendliness, but noted it had a good-faith belief that the claims were true when first publishing them.   Issue 585  

The Ninth Circuit Court of Appeals has rejected Stanislaus Food Products Co.’s attempt to revive a lawsuit alleging that several major manufacturers of tin cans conspired to cede the market to a single company, USS-POSCO Industries (UPI). Stanislaus Food Prods. Co. v. USS-POSCO Industries, No. 13-15475 (9th Cir., order entered October 13, 2015). “This appeal, which centers on tin mill products used to package food, teaches that there’s no substitute for concrete evidence,” the decision begins. Stanislaus, a tomato cannery, alleged that UPI, a joint venture of U.S. Steel and POSCO America Steel Corp., conspired with other tin mill producers to allocate the tin can market to UPI and fix the prices of tin mill products. Stanislaus cited the fact that POSCO never entered the western U.S. market as evidence of conspiracy; the court considered the practicality of the allegations and found them lacking. “A scheme like Stanislaus alleges would not…

School meals may contain enough bisphenol A (BPA) to exceed low-dose toxicity thresholds, according to Stanford and Johns Hopkins researchers. Jennifer Hartle, et al., “Probabilistic modeling of school meals for potential bisphenol A (BPA) exposure,” Journal of Exposure Science and Environmental Epidemiology, September 2015. Using federal school nutrition guidelines as well as information obtained from San Francisco Bay Area schools, the researchers modeled BPA exposure scenarios for elementary and middle schoolers consuming a mix of fresh and packaged foods at school lunch. The results evidently showed exposures ranging from 0.00049μg/kg-BW/day for a middle-school student with a low-exposure breakfast, to 1.19μg/kg-BW/day for an elementaryschool student eating a high-exposure lunch. “During school site visits, I was shocked to see that virtually everything in school meals came from a can or plastic packaging,” Stanford Prevention Research Center Postdoctoral Fellow Jennifer Hartle is quoted as saying. “Meat came frozen, pre-packaged, pre-cooked and pre-seasoned. Salads…

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