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

A plaintiff has filed a putative class action alleging that Kellogg Sales Co. misleads consumers as to the quantity of vegetables in its MorningStar "Veggie" products, including "Veggie Burgers," "Veggie Dogs," "Veggitizers" and "Veggie Chik'n." Kennard v. Kellogg Sales Co., No. 21-7211 (N.D. Cal., filed September 17, 2021). Kellogg represents its products as "Veggie," the complaint asserts, "but this representation is false or at least highly misleading because the predominant non-water ingredient in all of the Veggie Products is not vegetables—or even vegetable-based—but instead, grain or oil." The consumer also argues that the "Veggie" products violate California law "by using product names that include the term 'VEGGIE' while failing to disclose the percentage of vegetables in the products, which have a material bearing on the price and consumer acceptance of the Veggie Products." The plaintiff alleges violations of California consumer-protection statutes as well as breach of warranties and seeks class…

A New York federal court has dismissed allegations that Aldi Inc. misled consumers about the contents of its vanilla almond milk product. Parham v. Aldi Inc., No. 19-8975 (S.D.N.Y., entered September 21, 2021). The complaint asserted that the almond milk contained a "comparatively high level of vanillin" and "'a trace or de minimus' amount of vanilla," allegedly misleading consumers as to the primary flavoring agent of the product. A magistrate judge provided the court with a recommendation, noting that a "reasonable consumer would understand that the word ‘vanilla’ on the front of the carton describes how the Product tastes, not what it contains, especially in circumstances where the ingredients listed on the Product container do not mention vanilla at all." Further, the magistrate stated, "Five other courts in this district have recently addressed nearly identical arguments regarding other vanilla-flavored products. All five courts rejected claims that the labeling of vanilla-flavored products was…

The European Food Safety Authority (EFSA) and the European Chemicals Agency (ECHA) have begun consultations seeking scientific evaluations of glyphosate. "The classification of chemicals is based solely on the hazardous properties of a substance and does not take into account the use or likelihood of exposure to the substance," the announcement notes. "Exposure is considered as part of the risk assessment of pesticide active substances, a process led by EFSA." Glyphosate is currently approved for use the European Union until December 2022, and EFSA and ECHA anticipate finalizing their conclusions "in the second half of 2022." Comments will be accepted until November 22, 2021.

The U.S. Department of Agriculture (USDA) has announced a public meeting to receive comments on the U.S. positions for the Codex Alimentarius Committee meeting on Nutrition and Foods for Special Dietary Uses. The public meeting, which will be held October 19, 2021, will include discussions on a draft guide for ready-to-use therapeutic foods and the establishment of nutrient reference values-requirements for those aged 6-36 months.

The U.S. Department of Agriculture has requested comments on "the labeling of meat and poultry products comprised of or containing cultured cells derived from animals subject to the Federal Meat Inspection Act or the Poultry Products Inspection Act." Comments will be accepted until November 2, 2021. The announcement details the U.S. Cattlemen's Association's 2018 petition urging the agency to "limit the definition of 'beef' to products derived from cattle born, raised, and harvested in the traditional manner, and thereby prohibit foods comprised of or containing cultured animal cells from being labeled as 'beef.'” In response to the petition, the agency received more than 6,000 comments "from trade associations, consumer advocacy groups, businesses operating in the meat, poultry, and cultured food product markets, and consumers," the announcement states. "Most comments opposed the petition overall; however, nearly all generally agreed that cultured meat and beef should be labeled in a manner that…

The U.S. Food and Drug Administration (FDA) announced the results of a study on the presence of per- and polyfluoroalkyl substances (PFAS) in processed foods, including baby foods. Out of 167 samples, three products had detectable levels of PFAS, the agency stated, and the amounts were not elevated to a level of concern. "Based on the best available current science, the FDA has no scientific evidence that the levels of PFAS found in the samples tested indicate a need to avoid any particular food in the food supply." “The FDA’s testing for certain PFAS in such a wide range of foods available, including those commonly eaten by babies and young children, is among the first study of its kind,” said Acting FDA Commissioner Janet Woodcock in a press release. “Although our studies to date, including these newly released results, do not suggest that there is any need to avoid particular…

The Center for Science in the Public Interest has joined three other advocacy groups and four poultry producers to urge the U.S. Department of Agriculture (USDA) to update poultry food safety standards. "While progress on reducing foodborne illness has been at a standstill, scientific knowledge of Salmonella has greatly increased and recognized best practices for Campylobacter and other pathogens have advanced. Science tells us that current performance standards do not effectively target the particular types of Salmonella and the levels of bacteria that pose the greatest risks of illness, and the overall regulatory framework does not adequately harness modern tools for preventing and verifying control of the bacteria that are making people sick," the letter to Secretary Tom Vilsack states. "In order to finally make public health progress on Salmonella and Campylobacter illnesses and meet the Healthy People 2030 targets, significant change in the [Food Safety and Inspection Service (FSIS)]…

Snyder's-Lance Inc. has voluntarily dismissed a lawsuit seeking to appeal a decision holding that it could not trademark "Pretzel Crisps" as a name for its product, which Frito-Lay North America Inc. had challenged before the Trademark Trial and Appeal Board. Snyder's-Lance Inc. v. Frito-Lay N. Am. Inc., No. 21-1758 (4th Cir., filed August 31, 2021). The dismissal concludes years-long litigation disputing whether the "Pretzel Crisps" mark was too generic to be registered. An appeal of a lower court's ruling that the term is generic had been pending until Snyder's-Lance's voluntary dismissal.

Shook Partner Cary Silverman joined the U.S. Chamber Institute for Legal Reform's (ILR's) Oriana Senatore for an episode of the organization's podcast Cause for Action to discuss his work preparing "The Food Court: Developments in Litigation Targeting Food and Beverage Marketing." Senatore asks Silverman,  "Can you give us a flavor for this litigation? What types of food lawsuits are courts seeing and what is driving this increase?" "Flavor is exactly the right word, because that's the type of lawsuits that we're seeing most recently," Silverman explains. "Lawsuits that are concentrating on the flavoring or the ingredients of products seem to be, as one might say, the 'flavor of the month' of this type of litigation. We've seen, in our 2017 paper,  there were certain types of lawsuits, like slack fill, that were sort of the rage a couple of years ago. While those have fallen to the wayside for various…

Shook Partner Cary Silverman, Partner Jim Muehlberger and Of Counsel Adriana Paris have authored a report on behalf of the U.S. Chamber Institute for Legal Reform on food and beverage marketing. The executive summary appears below, with permission from the Institute for Legal Reform. For additional reading on this subject, please see Muehlberger and Silverman's August 10, 2021, Law360 article, "TransUnion Ruling Should Help Curb DC Consumer Claims" (PDF download also available). Lawsuits targeting food and beverage labeling have reached record levels. The unrelenting surge of class actions results from imaginative, shakedown lawsuits generated by a relatively small group of attorneys. Four years ago, the U.S. Chamber Institute for Legal Reform (ILR) documented a dramatic rise in food and beverage marketing litigation. Since that time, the number of food class actions has continued to rise, and the COVID-19 pandemic did nothing to slow them down. This paper explores the latest…

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