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

Labeling class action filings focused on purportedly misleading ingredient labels tend to come in waves, and 2019 saw a surfeit of lawsuits targeting vanilla, white chocolate and malic acid. Several plaintiffs alleged that they were misled by products listed as vanilla-flavored because, they argued, they believed they were buying products flavored with vanilla beans rather than artificial vanilla. The allegations reached yogurt, cream soda, ice cream, coconut milk and almondmilk, among other products. D-l malic acid, a synthetic flavoring, was frequently alleged to be masquerading on ingredient lists as malic acid, a naturally occurring compound. Many plaintiffs argued that they purchased products—including Brookside chocolates, Laffy Taffy, orange juice and SweeTarts—believing them to be "natural" and free of synthetic ingredients. Plaintiffs continue to file putative class actions alleging that they were misled by labels marketing products as containing "real cocoa" rather than "cocoa processed with alkali," and Oreos and Cocoa Pebbles…

Several 2019 putative class actions targeted food products that purportedly misled consumers because they were marketed as "healthy" despite containing ingredients with debated health benefits. Coconut and coconut-derived products were a popular target for plaintiffs, who asserted that they were misled about the benefits associated with cooking with coconut oil or drinking coconut milk because coconut products frequently carry high levels of saturated fat. The same plaintiff sued Hain Celestial Group Inc. and Danone U.S. Inc., though the court found that Danone's marketing touting So Delicious Coconut Milk's "Maximum Calcium Absorption" benefit was "a permissible structure/function claim." "Healthy" confusion also extended to TGI Friday's Inc. potato skins—the "labeling deceives consumers into believing that they are receiving a healthier snack" because the potato skin is high in several nutrients, the plaintiffs allege—and sprouted grains, which Food for Life Baking Co. Inc. apparently marketed as nutritionally superior to comparable cereal products. Kellogg Sales…

Following the passage of the 2018 Farm Bill, which legalized the cultivation of hemp, cannabidiol (CBD) became the star ingredient of 2019, featured on its own as an oil or in food and beverages. The U.S. Food and Drug Administration (FDA) struggled to keep up with the hype; while CBD stayed in legal limbo, U.S. lawmakers and other public officials urged the agency to take action and create a legal framework for a burgeoning industry capitalizing on the popularity of CBD and its purported calming and healing effects. Several companies went too far in their marketing, however, according to the U.S. Food and Drug Administration's and Federal Trade Commission's warning letters focused on the claimed benefits of the product. The U.S. Department of Agriculture issued its interim final rule on hemp production in October, but the announcement drew hundreds of comments urging the agency to make pragmatic adjustments. Sens. Ron…

Consumers and regulators have long expressed concerns about the safety of plastic and other materials in packaging for food, and in 2019, concern turned towards perfluorinated compounds (PFAS). Rep. Debbie Dingell (D-Mich.) introduced legislation in May that would ban PFAS in food containers and cookware, and a U.S. Food and Drug Administration (FDA) presentation was revealed that reportedly disclosed that agency researchers found high levels of PFAS in meat, fish, leafy greens and chocolate cake. In its response to headlines about the presentation, FDA stated, "Overall, our findings did not detect PFAS in the vast majority of the foods tested. … In addition, based on the best available current science, the FDA does not have any indication that these substances are a human health concern, in other words a food safety risk in human food, at the levels found in this limited sampling. These data give our scientists a benchmark…

As consumers prioritize animal welfare more highly when purchasing meat, more companies are claiming to hold their production facilities to high standards—and more plaintiffs are disagreeing. Advocacy groups have targeted multiple companies for their allegedly misleading marketing touting their humane housing or slaughtering practices. For example, the Organic Consumers Association and Food & Water Watch filed a lawsuit against Pilgrim's Pride Corp. challenging the conditions of its chickens in its production plants. Facing a similar lawsuit, Hormel Foods Corp. won summary judgment when the D.C. Superior Court found the Animal Legal Defense Fund's claims to be preempted by the U.S. Department of Agriculture. In addition, the European Court of Justice considered what slaughter methods could warrant an "organic" label, determining that cows must be stunned before they are slaughtered. The National Advertising Division also recommended changes to a marketing campaign following a complaint that Clemens Food Group used misleading language…

The dispute over the meaning of meat- and dairy-related terms continued in 2019, with more states passing bans on the use of terms implying animal-derived products, such as "burger" or "milk," to describe plant-based products. Nebraska, Arizona and Washington considered bans, and Arkansas' ban was targeted with a challenge from Tofurky that has resulted in a temporary injunction preventing the state from enforcing the statute against the company. Similarly, Mississippi proposed amendments to its meat-defining law after a "vegan bacon" and "vegan chorizo" company argued that the law "harms society." A Missouri court, meanwhile, denied the Good Food Institute's and American Civil Liberties Union's motion for a preliminary injunction to enforce the state's meat-labeling statute. In addition, a bipartisan bill introduced in November, the Real MEAT Act, would define meat-related terms if the U.S. Department of Agriculture and Food and Drug Administration (FDA) "fail[] to take appropriate action." The issue…

Allergen labeling grabbed headlines in the United Kingdom in 2019 as the country faced pressure from consumers concerned that prepackaged foods lacked mandated ingredient disclosures. Following the 2016 death of a teenager who consumed a premade sandwich packaged without notification of potential exposure to sesame, the U.K. Food Standards Agency launched a public consultation that resulted in the announcement of "Natasha's Law." Under the law, which will take effect in October 2021, restaurants and other food-service entities will be required to provide a full listing of ingredients on prepackaged food. In the United States, sesame is not an allergen that requires labeling, although the U.S. Food and Drug Administration (FDA) requested comments on the allergy's prevalence and severity in 2018. The New York Times called current U.S. regulations incomplete in January, and an August NPR article compared the two systems and found awareness of allergies in the United States lacking.…

U.K. researchers have published a meta-analysis in The BMJ asserting that physical activity calorie equivalent (PACE) labeling on food packaging "may reduce the number calories selected from menus and decrease the number of calories/grams of food consumed by the public, compared with other types of food labelling/no labelling." Daley et al., "Effects of physical activity calorie equivalent food labelling to reduce food selection and consumption: systematic review and meta-analysis of randomised controlled studies," The BMJ, December 10, 2019. The researchers identified 15 studies on PACE labeling and reportedly found that the technique may have caused the study participants to choose meals that contained 65 fewer calories on average compared to participants not exposed to PACE labels. "Most people eat three meals per day (plus two snacks); based on our findings for the number of calories consumed after exposure to PACE labelling (−65 calories), PACE labelling could potentially reduce calorie intake…

The Seventh Circuit has declined to revive a putative class action alleging that Fannie May Confections Brands Inc. misleads consumers as to the amount of chocolates contained in its boxes. Benson v. Fannie May Confections Brands Inc., No. 19-1032 (7th Cir., entered December 9, 2019). The court found that the plaintiffs suffered no "actual damage" as a result of Fannie May's allegedly misleading packaging. The plaintiffs "never said that the chocolates they received were worth less than the $9.99 they paid for them, or that they could have obtained a better price elsewhere," the court held. "That is fatal to their effort to show pecuniary loss. Moreover, their request for damages based on the percentage of nonfunctional slack-fill is quite vague. They do not explain how a percentage refund of the purchase price based on the percentage of nonfunctional slack-fill corresponds to their alleged harm. They thus failed to raise…

An Arkansas federal court has granted Turtle Island Foods SPC, which does business as Tofurky Co., a preliminary injunction preventing the enforcement against it of an Arkansas law prohibiting the use of meat-related terms to describe plant-based products on food packaging. Turtle Island Foods SPC v. Soman, No. 19-0514 (E.D. Ark., C. Div., entered December 11, 2019). The court found that Tofurky "likely faces ruinous civil liability, enormous operational costs, or a cessation of in-state operations" if the statute is enforced against it. The court granted the preliminary injunction despite Arkansas' indication that it "does not intend to begin enforcement" until the constitutional challenge is resolved because "there is nothing in the record binding the State to that position" and "the State has made no assurances that it will not levy retroactive penalties for Tofurky's alleged violations of Act 501 between the law's passage and this litigation's conclusion."

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