Posts By Shook, Hardy & Bacon L.L.P.

A plaintiff has filed a putative class action alleging that Whole Foods Market Group Inc. misleads consumers by selling sparkling mineral water in a lemon raspberry flavor without an "appreciable amount" of lemons and raspberries. Kelly v. Whole Foods Mkt. Grp. Inc., No. 21-3124 (S.D.N.Y., filed April 11, 2021). The label of the water contains images of lemons and raspberries, the complaint asserts, and consumers "will expect the presence of a non-de minimis amount of lemon and raspberry ingredients, based on the pictures of these fruits." The plaintiff argues that the ingredient list, which shows the contents as "carbonated mineral water, organic natural flavors (raspberry, lemon)," fails to inform consumers the flavoring "mainly consists of flavors from fruits other than lemons and raspberries." "Because lemon oil and raspberry oil or raspberry extract are not separately identified ingredients, it means that any real lemon or raspberry flavoring is at most a de minimis…

Two consumers allege that Ancient Brands' Ancient Nutrition Bone Broth Protein products are marketed as beneficial to health but contain protein that is "largely indigestible to the human body and provides little to no actual benefit to consumers." Bush v. Ancient Brands LLC, No. 21-0390 (N.D.N.Y., filed April 5, 2021). The complaint asserts that Ancient Brands fails to calculate the protein content as a percentage of daily value or as calculated by the Protein Digestibility Amino Acid Corrected Score, allegedly violating state and federal regulations. The plaintiffs detail how protein content is calculated, asserting that the percentage daily value listed on the packaging provides consumers information on the quality of protein and is required on product packaging that contains a nutrient content claim for protein. The plaintiffs allege violations of New York and California consumer-protection statutes as well as fraudulent concealment, unjust enrichment and breach of express warranty.

The U.S. Court of Appeals for the Fifth Circuit has ruled that H.J. Heinz Co. Brands did not violate the Metchup trademark when it introduced a poll letting consumers choose the name of its mayonnaise-ketchup blend, which ultimately chose "Mayochup" as the winner but included "Metchup" as an option. Perry v. H.J. Heinz Co. Brands LLC, No. 20-30418 (5th Cir., entered April 12, 2021). The district court found no likelihood of confusion between Heinz' "convenient, yet perhaps gratuitous, mixture" and the plaintiff's product, which has sold about $170 worth of either mayonnaise-ketchup or mustard-ketchup blends "from the lobby of a nine-room motel adjacent to his used-car dealership in Lacombe, Louisiana." The appeals court found that the Metchup name was one of more than 90 suggestions submitted by consumers in Heinz' poll on what the mayonnaise-ketchup combination should be called, which also included, as the court noted, "Saucy McSauceface, an apparent…

The U.S. House of Representatives has voted 415-11 to pass the Food Allergy Safety, Treatment, Education, and Research Act of 2021 (FASTER Act), a bill that will expand the definition of "major food allergen" to include sesame. The bipartisan bill, which passed the Senate in March 2021, will head to the White House for President Biden's signature. Upon enactment, sesame will become the ninth major food allergen, joining milk, egg, wheat, peanuts, shellfish, tree nuts, fish and soybeans.

The National Organic Program can continue to include foods grown through hydroponics following a ruling from a California federal court holding that the U.S. Department of Agriculture (USDA) acted reasonably in concluding that the statutory scheme does not exclude hydroponics. Ctr. for Food Safety v. Perdue, No. 20-1537 (N.D. Cal., entered March 18, 2021). The Center for Food Safety (CFS) had sought to limit foods labeled as "organic" to only foods grown in soil, but the USDA denied the advocacy group's petition. "The petition denial should not be disturbed because USDA reasonably defends its determination that [the Organic Foods Production Act (OFPA)] does not compel the prohibition of hydroponics," the court held. "USDA’s ongoing certification of hydroponic systems that comply with all applicable regulations is firmly planted in OFPA. It therefore provides the 'reasonable explanation' required on review, so its denial will not be vacated."

A California federal court has ruled that the state "has not shown that the cancer warnings it requires are purely factual and uncontroversial" or "that Proposition 65 imposes no undue burden on those who would provide a more carefully worded warning." Cal. Chamber of Com. v. Becerra, No. 19-2019 (E.D. Cal., entered March 29, 2021). The California Chamber of Commerce filed a lawsuit seeking to enjoin new lawsuits from enforcing the Safe Drinking Water and Toxic Enforcement Act (Prop. 65) against foods that contain acrylamide. The court considered evidence on the toxicity of acrylamide, finding that "some evidence does support such an inference" that eating food with acrylamide will increase a person's risk of cancer, but "dozens of epidemiological studies have failed to tie human cancer to a diet of food containing acrylamide. Nor have public health authorities advised people to eliminate acrylamide from their diets. They have at most…

A Minnesota federal court has ruled that the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) violated the Administrative Procedures Act (APA) when it adopted the New Swine Inspection System (NSIS), which eliminated line speed limits for pork processing. United Food & Com. Workers Union, Local 663 v. USDA, No. 19-2660 (D. Minn., entered March 31, 2021). The court found that the final rule establishing the NSIS "contains no discussion, analysis, or evaluation of the worker safety comments" that it received during the notice-and-comment period. "The only response FSIS gave to the worker safety comments it solicited was to state that it lacked authority to regulate worker safety. In context, the agency appeared to suggest that it wanted to consider the comments but was not legally permitted to do so," the court held. "By offering its lack of legal authority and expertise on worker safety as its only…

The U.S. Food and Drug Administration (FDA) has released "Closer to Zero," its action plan for reducing infants' exposure to heavy metals following a Congressional report on toxic elements in baby foods. "Although the FDA’s testing shows that children are not at an immediate health risk from exposure to toxic elements at the levels found in foods, we are starting the plan’s work immediately, with both short- and long-term goals for achieving continued improvements in reducing levels of toxic elements in these foods over time," the agency states. Under the plan, FDA will (i) "evaluate the scientific basis for action levels," (ii) "propose action levels," (iii) "consult with stakeholders on proposed action levels," and then (iv) "finalize action levels." The agency will then "establish a timeframe for assessing industry’s progress toward meeting the action levels and recommence the cycle to determine if the scientific data support efforts to further adjust…

The U.S. Government Accountability Office (GAO) has issued "Imported Seafood Safety: FDA Should Improve Monitoring of Its Warning Letter Process and Better Assess Its Effectiveness," finding that the U.S. Food and Drug Administration (FDA) was inconsistent in following key procedures and meeting goals for monitoring the importation of seafood. The report's recommendation is that FDA "(1) establish a process to monitor whether the agency is following the procedures and meeting the goals established for its warning letter process for imported seafood, and (2) develop performance goals and measures to assess how effective warning letters are at ensuring the safety of imported seafood."

U.S. Sen. Ron Wyden (D-Ore.) and Rep. Earl Blumenauer (D-Ore.) have reintroduced legislation that would "ensure that kombucha beverages are exempt from excise taxes and regulations intended specifically for beer and other alcoholic beverages," according to a press release. The KOMBUCHA Act would increase the alcohol-by-volume level at which alcohol taxes would be applied to kombucha, "a nonintoxicating beverage made from a combination of tea, water, and a symbiotic culture of bacteria and yeast," to 1.25% rather than the existing standard of 0.5%. "This amount of alcohol in kombucha is usually less than 0.5 percent alcohol, but because of the natural process of fermentation, the alcohol content may occasionally increase slightly, especially during transport or handling by third parties," the press release states. "Today, under the Internal Revenue Code, beverages with more than 0.5 percent alcohol-by-volume are subject to excise taxes intended for beer. But the reality is, consumers do…

Close