Two plaintiffs have alleged that McCormick & Co. Inc. sells herbs and spices that "expose consumers to heightened levels of toxic heavy metals, including lead, arsenic, and cadmium," without providing warnings. Balistreri v. McCormick & Co. Inc., No. 22-0349 (N.D. Cal., filed January 18, 2022). The complaint cites a Consumer Reports article, "Your Herbs and Spices Might Contain Arsenic, Cadmium, and Lead," that purports to have found "sufficient levels of toxic metals as to render them unsafe for human consumption." "As a result of Defendant’s respective representations regarding the safety of their herbs and spices, and Defendant’s concealment of the fact that its herbs and spices contained elevated levels of toxic heavy metals, Plaintiffs and the Class members reasonably believed that Defendant’s Products were free from substances that would negatively affect children’s development as well as their own health," the complaint asserts. The plaintiffs seek to represent a class of consumers alleging violations…
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A consumer has filed a putative class action alleging Whole Foods Market Group Inc. sells a boxed rice pilaf in packaging that misleads consumers by being larger than the ingredients inside require. Jacobs v. Whole Foods Mkt. Grp., No. 22-0002 (N.D. Ill., E. Div., filed January 1, 2022). The complaint details Whole Foods' stated commitment to environmentally friendly practices before arguing that the rice pilaf box contains "over 50%" empty space without legitimate reason. "Defendant promised customers, through digital, print, audio, television, and in-store placards and signs, that it is replicating its reduction in excess packing materials across all aspects of its operations, to promote environmental welfare," the plaintiff asserts. "Defendant’s excess packaging violates its pledges and commitments to consumers that it will operate sustainably and promote environmental stewardship." In addition to allegations of fraud, negligent misrepresentation and unjust enrichment, the plaintiff alleges violations of Illinois consumer-protection statutes and the Magnuson-Moss…
The U.S. Food and Drug Administration (FDA) has revoked the standard of identity for French dressing following a citizen petition filed by the Association for Dressings and Sauces. The revocation finalizes a December 2020 rule that "will allow for greater innovation and more flexibility of products on the market," according to an FDA Constituent Update. "The standard of identity for French dressing characterized it as containing oil, acidifying and seasoning ingredients, and allowed additional safe and suitable ingredients," the update notes. "However, based on information submitted to the FDA, consumers appear to expect French dressing to have certain characteristics not required by the standard, such as containing tomatoes or tomato-derived ingredients."
A Virginia federal court has reportedly confirmed that gruyere cheese does not need to be produced in the region near Gruyères, Switzerland, to carry the name in American stores. A consortium of cheesemakers in France and Switzerland near the region had appealed after the Trademark Trial and Appeals Board denied its application for a trademark, but the Eastern District of Virginia found that "gruyere" had been imported from areas outside of the Gruyère district for decades before the consortium applied for protections. A spokesperson for Switzerland's agriculture department reportedly told the New York Times, “Using the term ‘gruyère’ for a cheese produced in the United States threatens the reputation of the original product and its place in the foreign market and can only harm the entire sector."
A consumer has alleged that Mondelez Global LLC misleads consumers by marketing its Oreo Fudge Cremes as "fudge covered" because the topping covering the cookies lacks milkfat. Leonard v. Mondelez Global LLC, No. 21-10102 (S.D.N.Y., filed November 28, 2021). The complaint lists several recipes for fudge to support its argument that fudge requires the presence of milkfat, while Mondelez produces its "fudge" with palm oils and nonfat milk. "Fudge covered cookies made with fudge ingredients such as dairy components, containing milkfat, are not a rare or pricy delicacy that would make a reasonable consumer 'double check' their presence by scouring the packaging," the plaintiff argues. "The front label creates an erroneous impression that essential fudge ingredients are present." The complaint compares the "fudge" ingredients to the "truthful and non-misleading 'Mint' representations, through words and pictures of peppermint leaf," which are accurate because the product contains peppermint oil, the plaintiff explains.…
A plaintiff has filed a putative class action alleging Abbott Laboratories Inc.'s Similac Pro-Advance infant formula is advertised as the company's "closest formula to breastmilk," allegedly misleading consumers into believing that the formula can convey the same benefits as breast milk. Conner v. Abbott Labs. Inc., No. 21-1463 (S.D. Ill., Benton Div., filed November 20, 2021). "Infant formula is critical for children whose mothers are unable to breastfeed or produce enough milk," the complaint asserts. "Marketing of infant formula sometimes goes beyond meeting those limited needs, to tout itself as an equivalent to breast milk. The representations that the Product contains lutein, vitamin E, DHA, and HMO—Human Milk Oligosaccharide, and the claim, 'Our Closest Formula to Breast Milk,' imply the inclusion of these constituents can approach the benefits from breast milk." The plaintiff seeks class certification, injunctive relief, damages and fees for allegations of fraud, unjust enrichment, negligent misrepresentation and…
By Of Counsel John Johnson III The U.S. Food and Drug Administration’s (FDA) Warning Letter to Maribel’s Sweets, Inc., provides an important look into how FDA is implementing the Food Safety Modernization Act (FSMA)’s Preventive Control Rule. This is the requirement that a food facility must have and implement a written food safety plan to control known or reasonably foreseeable food safety hazards. Additionally, the warning reflects that FDA continues to prioritize seeking compliance with preventive controls and sanitation practices to avoid undeclared Major Food Allergens (which we discussed in A Taste of FDA’s 2021 Food Priorities: Undeclared Major Food Allergens. The list has been expanded to include sesame, which we discussed in Look Beyond the Label: How the FASTER Act Impacts Food Manufacturing). FDA has been relatively silent about the Preventive Control Rule in 2021, issuing only four Warning Letters directly on that topic. For context, FDA issued at…
By Associate Anne Case-Halferty Evolving consumer demands, litigation trends and the disruptive effects of the COVID-19 pandemic were featured topics of the Ninth Annual FoodBev Exchange, which took place virtually November 9-10. Compliance and regulatory professionals from across the country shared best practices and discussed recent and emerging developments in the food and beverage industry, including: the growth of grocery e-commerce and food delivery services; data security and privacy concerns; and shifting regulatory enforcement priorities. Of Counsel John F. Johnson III led an in-depth panel discussion with prominent industry professionals about emerging FDA, USDA and FTC labeling priorities and advertising trends. Key topics included: pending legislation targeting food safety and quality standards; the possibility of further regulatory clarity by FDA on the use of “healthy” and “natural” labeling terms; and FTC’s newly finalized rule cracking down on marketers making false “Made in the USA” labeling claims. Panelists included Megan Galey,…
A plaintiff has alleged that Mondelez Global LLC misleads consumers about the butter content of its Lorna Doone shortbread cookies. Troutt v. Mondelez Global LLC, No. 21-1279 (S.D. Ill., Benton Div., filed October 19, 2021). The plaintiff argues that "the Product’s ingredients are inconsistent with what consumers expect from a food identified as 'shortbread cookies'" and asserts that "Dictionary.com defines shortbread as a 'a butter cookie commonly made in thick, pie-shaped wheels or rolled and cut in fancy shapes.'" Instead of butter, the plaintiff alleges, Mondelez uses "shortening provided exclusively from vegetable oils," resulting in a cookie that "lacks the nutritional, organoleptic, and sensory attributes of shortbread." Further, the consumer argues, the representation of Lorna Doone cookies as providing a '"Melt in Your Mouth' taste is false and misleading" because "vegetable oils do not melt at mouth temperature, and leave a waxy mouthfeel," while "[b]utter melts at mouth temperature and does…
The U.S. Food and Drug Administration (FDA) has released guidance on limiting sodium in processed and packaged foods. "Limiting certain nutrients, such as sodium, in our diets plays a crucial role in preventing diseases like hypertension and cardiovascular disease that disproportionately impact racial and ethnic minority groups; these diseases often result in hundreds of thousands of lives lost and billions in annual health care costs," the agency stated in a press release. The statement notes that "people consume 50% more sodium than recommended," and "about 70% of the sodium we eat comes from packaged, processed and restaurant foods." "[W]e recognize that most of the food consumption in the U.S. comes from a relatively small number of products and menu items in the marketplace that are produced by a limited number of food manufacturers," the guidance states. "It is possible that reformulation by these food manufacturers could lead to increased demand…
