The U.K. Advertising Standards Authority (ASA) has upheld a complaint against BrewDog Beer for a print ad and an outdoor poster ad that displayed "F--k You CO2. Brewdog Beer Is Now Carbon Negative" with the dashes obscured by a can of beer. ASA found that the poster ad "had been placed in accordance with guidelines on proximity to schools and religious buildings; that the ad had run during school summer holidays and that one local authority (Newcastle City Council) had been asked and considered the ad acceptable for use." However, the board found that the ad "was so likely to offend a general audience that such a reference should not appear in media where it was viewable by such an audience. We therefore concluded that the ad was likely to cause serious and widespread offence and was not appropriate for display in untargeted media." ASA upheld the complaint as it…

The Court of Justice of the European Union (CJEU) has prevented France from banning the marketing of cannabidiol (CBD) "lawfully produced in another Member State when it is extracted from the Cannabis sativa plant in its entirety and not solely from its fibre and seeds." In its ruling, CJEU found that "CBD cannot be classified as a 'narcotic drug,'" and although France is "not required to demonstrate that the dangerous property of CBD is identical to that of certain narcotic drugs," the country "must assess available scientific data in order to make sure that the real risk to public health alleged does not appear to be based on purely hypothetical considerations. A decision to prohibit the marketing of CBD, which indeed constitutes the most restrictive obstacle to trade in products lawfully manufactured and marketed in other Member States, can be adopted only if that risk appears sufficiently established."

Two consumers allege that Hawaiian Host Candies, "synonymous with Hawaii," are made in Gardena, California.  Toy v. Hawaiian Host Candies of L.A. Inc., No. 20-2191 (C.D. Cal., filed November 17, 2020). "Had Plaintiffs and other consumers known that the Hawaiian Host Products are not made in Hawaii, they would have paid significantly less for them, or would not have purchased them at all," the complaint alleges. The plaintiffs assert that the candy packaging intentionally misleads consumers with the candy name as well as statements such as "Hawai'i's Gift to the World," "Hawaiian Host products are made with aloha" and "Our classic confections reflect our deep connection to Hawai'i and are meant to be shared with others in the true spirit of Aloha." The packaging also includes the name of Hawaiian Host Inc. and a Honolulu address. As further evidence, the complaint cites the company's social media feeds, which share images of…

Two consumers have alleged that Kellogg Co. markets promotions on the packaging of its products that end before the shelf life of the product. Seaman v. Kellogg Co., No. 20-5520 (E.D.N.Y., filed November 13, 2020). The complaint asserts that consumers rely on incentives listed on product packaging when deciding which product to purchase, but because the shelf life of the products extends beyond the expiration of the incentive, the products stay on store shelves longer than the length of the promotion and consumers purchase products relying on offers that they ultimately cannot use. "Where a shopper views a promotion such as described here, they will have no reason to scrutinize the fine print telling them when the promotion expires," the complaint argues. "Reasonable consumers are not so innately distrustful of companies and expect that all aspect of consumable items, including promotions, are functional throughout their shelf-life." The plaintiffs argue that…

Three similar lawsuits were filed against Target Corp., Gerber Products Co. and Mead Johnson & Co. alleging their "transition" formulas intended for 9- to 18-month-old children are misleadingly marketed as reviewed and monitored by the U.S. Food and Drug Administration to the same extent infant formulas are. Gavilanes v. Gerber Prods. Co., No. 20-5558 (E.D.N.Y., filed November 15, 2020); Gordon v. Target Corp., No. 20-9589 (S.D.N.Y., filed November 15, 2020); Palmieri v. Mead Johnson & Co., No. 20-9591 (S.D.N.Y., filed November 15, 2020). The complaints assert that the use of the infant formula nutrition panel on the back of the packaging "gives caregivers the impression that the Product is subject to the same scrutiny and oversight as Infant Formula products," causing buyers to be "less likely to identify the added sugar in the Infant & Toddler Formula Product, in the form of corn syrup solids, absent from the Infant Formula product." The…

A consumer has filed a putative class action alleging that Kerry Inc.'s Oregon Chai products contain too much sugar to be labeled "slightly sweet." Brown v. Kerry Inc., No. 20-9730 (S.D.N.Y., filed November 18, 2020). The complaint argues that the product's "most prominent claim, 'Slightly Sweet,' is an unlawful nutrient content claim that makes an 'absolute' or 'low' claim about the amount of sugar it contains." The product contains 11 grams of sugar and lists "organic dried cane sugar syrup" as the second ingredient on the ingredient list, and the complaint argues that the addition of milk or milk substitute as instructed by the packaging would result in a total of 20 grams of sugar per serving. The plaintiff alleges negligent misrepresentation, fraud and unjust enrichment along with violations of the Magnuson-Moss Warranty Act and New York's consumer-protection statutes.

The U.S. Food and Drug Administration (FDA) has filed a lawsuit seeking to enjoin Valley Processing Inc. from introducing adulterated food into interstate commerce. USA v. Valley Processing Inc., No. 20-3191 (E.D. Wa., filed November 6, 2020). FDA alleges Valley Processing's juice products "have been found to contain inorganic arsenic and patulin, both toxins which pose a health risk to consumers." The products were supplied to the U.S. Department of Agriculture's school lunch program, "providing approximately 2,964,000 apple juice servings to schoolchildren every year." FDA allegedly found "grossly insanitary conditions" during inspections in 2016, 2017, 2018 and 2019, including barrels containing "grape juice concentrate that was several years old" and "contaminated by filth and mold, thus not suitable for human consumption." Investigators "also discovered that Defendants processed the 'bottoms' of stored grape juice concentrate. The 'bottom' of juice concentrate is the leftover sludge that accumulates at the bottom of the…

A Massachusetts federal court has dismissed allegations against Polar Corp. asserting the company's ginger ale products contain a "miniscule amount" of ginger that "provides none of the health benefits consumers associate with real ginger." Fitzgerald v. Polar Corp., No. 20-10877 (D. Mass., entered November 10, 2020). The court noted that the complaint "appears to have been imperfectly copied from a nearly identical case brought in the Northern District of California involving Canada Dry ginger ale." The court was unpersuaded that Polar Corp. misrepresented that the ginger ale contained ginger, finding that ginger was indeed an ingredient. "[N]o reasonable consumer could rely on a claim of 'real ginger' in a soft drink as a representation that the drink contains chunks of 'ginger root' as opposed to a ginger taste," the court found, dismissing the plaintiff's allegations that rested on the existence of false statements.

A California federal court has granted class certification to consumers who purchased Kroger Co. breadcrumbs relying on a front-label representation stating the product contained "0g Trans Fat" despite the product's partially hydrogenated oil (PHO) content. Hawkins v. Kroger Co., No. 15-2320 (S.D. Cal., entered November 9, 2020). The court found that the class met all requirements for certification and granted the plaintiff's motion, certifying a class of "All citizens of California who purchased, between January 1, 2010 and December 31, 2015, Kroger Bread Crumb containing partially hydrogenated oil and the front label claim '0g Trans Fat.'"

The U.S. Food and Drug Administration (FDA) has issued draft guidance "encouraging food manufacturers to voluntarily declare sesame in the ingredient list on food labels." The guidance notes that "sesame can, in some circumstances (such as when ground and used in a spice blend), be declared in an ingredient statement as simply 'spice' or 'flavor,' so its presence may not be obvious to consumers." While FDA has not required sesame to be labeled, "we recommend that manufacturers, as a voluntary matter, clearly declare sesame in the ingredient list when it is used in foods as a 'flavor' or 'spice' in a parenthetical following the spice or flavor, such as 'spice (sesame),' 'spices (including sesame),' 'flavor (sesame),' or 'flavors (including sesame).' If a term is used for a food that is or contains sesame, such as tahini, we recommend that sesame be included in a parenthesis, e.g. 'tahini (sesame)' in the…

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