An Illinois federal court has granted Kraft Heinz Foods Co.'s motion to dismiss a lawsuit alleging the labeling noting the inclusion of mozzarella cheese and tomato sauce in Bagel Bites is misleading. Jackson v. Kraft Heinz Foods Co., No. 21-5219 (N.D. Ill., E. Div., entered August 3, 2022). "Central to all of Plaintiff s claims is the notion that the Product's label misleads consumers by representing that the Product contains ‘mozzarella cheese. REAL cheese,' and 'tomato sauce,' but omitting that it contains additives," the court found. "However, a product that says it contains mozzarella cheese and tomato sauce when the Product does, in fact, contain mozzarella cheese and tomato sauce is not misleading to the reasonable consumer simply because its label does not list its additives." The court also noted that the standard of a "reasonable consumer" can vary according to the product at issue. "[W]hile Plaintiff contends reasonable consumers do…

A consumer has filed a putative class action alleging Popeyes Louisiana Kitchen Inc. misled her into believing that the restaurant's chicken tenders were composed of chicken tenderloins. Sanders v. Popeyes Louisiana Kitchen Inc., No. 22-4477 (E.D.N.Y., filed July 29, 2022). "Traditionally, chicken tenders are made from chicken tenderloins," the complaint asserts. "Chicken tenderloins are the small strips of meat that are loosely attached to the underside of each breast, along the breastbone. As a result, chicken tenderloins are more tender than regular chicken breast, and hence, the name chicken tender. Chicken tenderloins are also juicier, making them more desirable for consumption. They are significantly smaller than the remainder of the chicken breast, also making them more expensive than the rest of the chicken breast." The chicken tenders at Popeyes, the plaintiff argues, are instead made from the remainder of the chicken breast. The plaintiff asserts that Popeyes' competitors are accurate in their…

The Center for Science in the Public Interest (CSPI) has filed a regulatory petition asking the U.S. Food and Drug Administration (FDA) "to require on the principal display panel of a food an easy-to-understand, standardized system that is 1) mandatory, 2) nutrient-specific, 3) includes calories, and is 4) interpretative with respect to the levels of added sugars, sodium, and saturated fat per serving." The petition argues that current food labeling requirements and voluntary industry initiatives are "insufficient to promote healthy diets" because the Nutrition Facts label "has low utilization." "Dozens of countries have implemented [front-of-package nutrition labeling (FOPNL)], and over one hundred experimental and real-world studies have tested the effects of different FOPNL systems," the petition asserts. "These studies find that well-designed interpretive FOPNL can significantly improve the healthfulness of foods selected by consumers and prompt product reformulation. The U.S. should learn from experiences abroad and follow the science to…

The U.S. Department of Agriculture is accepting comments on proposed changes to organic standards for livestock and poultry production. Issues addressed in the proposed changes include livestock health care practices, living conditions, transport and slaughter. The many proposed changes include a limit on the types of physical alterations permissible in organic livestock production, such as needle teeth clipping and tail docking in pigs, and the establishment of a distinction between requirements for mammalian living conditions and avian living conditions based on different physiological needs. Comments will be accepted until October 11, 2022.

The National Pork Producers Council and a group of organizations representing restaurants and hotels in New England have filed a lawsuit aiming to enjoin Massachusetts from enforcing a law set to take effect August 15, 2022, banning the sale of pork produced from animals "that the business owner or operator knows or should know is the meat of a covered animal that was confined in a cruel manner, or is the meat of the immediate offspring of a covered animal that was confined in a cruel manner." Mass. Restaurant Ass'n v. Healey, No. 22-11245 (D. Mass., filed August 3, 2022). The complaint urges the court to prevent enforcement until after the U.S. Supreme Court has reviewed a Commerce Clause challenge to a "materially identical California statute." The Massachusetts Pork Rule and California's Proposition 12 ban "the sale of pork born to a sow confined in a way that prevents her…

The U.S. Government Accountability Office (GAO) has issued a report suggesting that federal agencies can better coordinate guidance on healthy eating. The report found that GAO's previous recommendations had not been implemented, including a 2021 recommendation that Congress "consider identifying and directing a federal entity to lead a strategy on diet-related efforts." The agency also recommended in 2017 that the presidential administration develop a strategy for federal food oversight. "We have long reported on the fragmented federal food safety oversight system. We added federal oversight of food safety to our high-risk list in 2007; federal government operations on this list either need broad reform or are vulnerable to fraud, waste, abuse, and mismanagement. We added this issue to the list because of inconsistent oversight, ineffective coordination, and inefficient use of resources. For example, the U.S. Department of Agriculture (USDA) had critical information on contaminated eggs that ultimately sickened more than…

The U.S. Court of Appeals for the D.C. Circuit has upheld a lower court's ruling finding a challenge to the U.S. Food and Drug Administration's (FDA's) prohibition on interstate sales of unpasteurized butter to be meritless. McAfee v. FDA, No. 21-5170 (D.C. Cir., entered June 10, 2022). A lower court previously dismissed a challenge filed by a dairy farmer who argued that FDA's definition of butter does not require pasteurization and thus the rule banning the sale of unpasteurized butter under the Public Health Service Act (PHSA) made an "unlawful change to butter's statutory definition." FDA had denied the farmer's 2016 petition to exclude butter from the rule requiring pasteurization of milk products, finding that "the ban on raw butter helps prevent the spread of communicable diseases" and that "manufacturing controls intended to ensure safety [] may exist independent of any standards of identity." The D.C. Circuit was unpersuaded, agreeing…

Two consumers have filed a putative class action alleging that Barilla America Inc. markets its pasta to incorrectly imply that the products are made in Italy. Sinatro v. Barilla Am. Inc., No. 22-3460 (N.D. Cal., filed June 11, 2022). The complaint asserts that consumers seek "authentic Italian-made pastas" because they "hold a certain prestige and [are] generally viewed as a higher quality product." The plaintiffs argue that Barilla's statement "Italy's #1 Brand of Pasta," which appears prominently on its product packaging, leads consumers to believe that the products are made in Italy rather than New York and Iowa. Further, the company's website describes it as "an Italian family-owned food company" and emphasizes that "Italians know the familiar Blue Box means quality, perfectly al dente pastas every time. That's why Barilla has been an Italian favorite for over 140 years, and continues to be the #1 pasta in Italy today." For alleged…

A consumer has filed a putative class action alleging Danone North America Public Benefit Corp. misleads consumers about the nature of its International Delight coffee creamers by labeling the products as creamers rather than non-dairy creamers. English v. Danone N. Am. Pub. Benefit Corp., No. 22-5105 (S.D.N.Y., filed June 17, 2022). The plaintiff argues that International Delight creamer "lacks cream or dairy ingredients beyond a de minimis amount of sodium caseinate" and instead "substitutes water and palm oil, the first and third ingredients, to reduce costs." The complaint notes that consumers "value cream from dairy ingredients for its nutritive purposes," and the plaintiff alleges she would not have purchased the product if she had not been misled by the packaging implying the presence of dairy ingredients. For alleged violations of New York consumer-protection statutes, fraud, unjust enrichment and breach of express warranty, the plaintiff seeks class certification, restitution, damages and attorney's fees.

Clif Bar & Co. has submitted a settlement agreement to a California federal court seeking approval to settle a class action alleging that Clif Bars are misleadingly marketed as healthy despite containing levels of sugar beyond what consumers would expect healthy foods to contain. Milan v. Clif Bar & Co., No. 18-2354 (N.D. Cal., filed June 23, 2022). In addition to establishing a $10.5-million fund, Clif will "make significant changes to the labeling and packaging of its original Clif Bars and Kid ZBars," according to the agreement. The changes include refraining from use of "nutrition," "nutritious" and "nourishing kids in motion" on Clif Bar packaging "so long as 10% or more of [a bar's] calories come from added sugars." The class includes customers who purchased Clif Bars between April 19, 2014, and June 23, 2022, and claimants will be divided into quintiles with varying levels of awards depending on degrees of…

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