The Children’s Advertising Review Unit (CARU) has advised Kellogg Co. to revise the packaging for Fruit Flavored Snacks, recommending against statements that the product is “made with real fruit.” The front of the package featured cartoon characters and the statement “made with real fruit” superimposed on the image of an apple. The side panel clarified that the snacks are “made with equal to 20% fruit.” Based on a typical child’s interpretation of the message, CARU found that children may be confused because “although the fruit flavored snacks were made with fruit puree concentrate, at the end of the process, only a very small amount of actual fruit puree concentrate was included in each serving of the product.” In a statement, Kellogg indicated that it disagreed with CARU’s findings but would modify the language and remove the apple logo in deference to the self-regulatory process. Issue 614
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Restaurant chain Tasty Burger has reportedly threatened to file an infringement action against Chipotle Mexican Grill Inc. following the announcement of Chipotle’s new burger restaurant concept, Tasty Made. Tasty Burger argues that Tasty Made’s name and logo infringe upon Tasty Burger’s established marks, which have been used in commerce since 2010; in addition to the similar name, both logos feature white writing on a red background, albeit in different typefaces. Tasty Burger sent a cease-and-desist letter to Chipotle on July 19, 2016, but CEO David DuBois told the Chicago Tribune that the company ignored it. DuBois also told the paper he contacted the media about the dispute because he is “sick of getting calls from people asking me if we got absorbed.” In response, Chipotle told the Tribune that “there is sufficient difference between the names and logo marks so as not to cause consumer confusion, and we believe both…
A New Jersey federal court has transferred to California a lawsuit alleging that The Quaker Oats Co. misleads consumers with the packaging of its Maple & Brown Sugar oatmeal product because it does not contain maple syrup or maple sugar. Gates v. Quaker Oats Co., No. 16-1944 (D.N.J., order entered August 3, 2016). The complaint “makes essentially identical allegations against Quaker” as three other putative class actions pending in other federal courts, the court notes, including the first-filed case in California. The Judicial Panel on Multidistrict Litigation denied an Illinois plaintiff’s request to consolidate the cases into multidistrict litigation, but the panel suggested that the other parties transfer their lawsuits to California to streamline the process. Quaker moved to transfer the case from New Jersey to California, and the plaintiff did not oppose; accordingly, the court granted the motion to transfer. Issue 614
The Alabama Alcoholic Beverage Control Board (ABC) will reportedly vote on a proposed rule requiring brewers to collect personal information from purchasers of beer for off-premises consumption. The proposed rule, which requires gathering a customer’s name, address, age and phone number, follows a rule enacted June 1 allowing craft breweries to sell six-packs, large bottles and other containers of beer. The rule’s purpose may relate to enforcement of Alabama’s 288-ounce limit on single purchases, but the ABC has reportedly not publicly commented on the reasoning underlying the proposal. The board will vote on September 28, 2016. See Associated Press, August 5, 2016. Issue 614
The U.S. Food and Drug Administration (FDA) has extended until July 26, 2018, the deadline for posting the calorie counts of “certain gums, mints, and roll candy products” sold in glass-front vending machines, as well as for complying with type-size front-of-pack (FOP) labeling requirements. Published December 1, 2014, and effective December 1, 2016, the final rule requires businesses operating 20 or more vending machines to clearly disclose calorie counts “in a direct and accessible manner” if calories are not easily visible to prospective purchasers via FOP labeling. According to FDA, “several trade associations requested the extension for glass-front vending machines because of concerns regarding the requirements for the size of front-of-pack (FOP) calorie disclosures.” The trade associations apparently noted that “current voluntary FOP labeling programs require calorie information to be presented in a type size that ranges from 100 to 150 percent of the size of the net weight contents…
The National Academies Press (NAP) has published a report summarizing a March 2015 workshop held by the National Academies of Sciences, Engineering, and Medicine on The Interplay Between Environmental Chemical Exposures and Obesity. The report summarizes both animal model and human epidemiological studies allegedly linking exposure to environmental chemicals “to weight gain and to glucose tolerance, insulin sensitivity, inflammation, and other aspects of the metabolic syndrome.” It also examines the “possible biological pathways and mechanisms underlying the potential linkages.” Noting the purported efforts of so-called endocrine disruptors during prenatal and early childhood development, the report focuses on the increase in chemical production alongside obesity rates and raises questions about the metabolic effects of various substances such as “organophosphates and carbamates; polychlorinated biphenyls (PCBs); polybrominated biphenyls and fire retardants; heavy metals; solvents; and plastics, such as phthalates and bisphenol A (BPA).” In addition, the report addresses the potential role of infectious…
The U.S. Patent and Trademark Office has rejected Whole Foods Market’s attempt to trademark the phrase “World’s Healthiest Grocery Store,” finding the statement to be merely descriptive and puffery. The company currently owns a trademark in “America’s Healthiest Grocery Store,” which it reportedly earned by using the mark in commerce for several years before registration. The rejection notice cites other examples of rejected puffery, including Boston Beer Co.’s attempt to register “The Best Beer in America.” Whole Foods may update and refile its application within six months. See The Washington Post, July 28, 2016. Issue 613
Hampton Creek founder Josh Tetrick reportedly directed his employees to purchase Just Mayo, an eggless mayonnaise, at grocery stores while it pursued funding from investors, according to a Bloomberg report. Five former workers provided Bloomberg with receipts, expense reports, cash advances and emails telling employees, “We need you in Safeway buying Just Mayo and our new flavored mayos . . . And we’re going to pay you for this exciting new project! Below is a list of stores that have been assigned to you.” Tetrick told Bloomberg that the purchases were part of a quality-control program to assess Just Mayo from a customer’s perspective, but the survey database of that program did not account for hundreds of purchases, the report indicates. Additional emails also suggest the “Buyouts” project’s purpose was related to sales inflation, including one message that said, “The most important next step with Safeway is huge sales out…
The Texas Department of State Health Services has announced that Blue Bell Creameries must pay $850,000 in connection with a 2015 outbreak of Listeria monocytogenes linked to the company’s ice cream manufacturing facilities. Blue Bell must pay $175,000 within 30 days, but the remaining balance of $675,000 will not be due if the company follows the terms of its agreement with the state for 18 months. The agreement requires Blue Bell to notify the agency of a presumptive positive test result for Listeria and to maintain “test and hold” procedures, through which the company must ensure that its ice cream is free of pathogens before shipping the products to retailers. See Texas Press Release, July 29, 2016. Issue 613
The Topps Co. has filed a patent and trade-dress infringement lawsuit against Koko’s Confectionery & Novelty Inc. alleging that Koko’s Squeezy Squirt Pop copies some features of the Juicy Drop lollipop. Topps Co. v. Koko’s Confectionery & Novelty Inc., No. 16-0595 (S.D.N.Y., filed July 26, 2016). The complaint targets Squeezy Squirt Pop’s logo, font, bright and vivid colors set against a black background, flavor names and the appearance of the word “pop” as infringing trade dress. In addition, Topps asserts ownership of a patent on “a combination lollipop candy and flavored liquid dispenser”; a Squeezy Squirt Pop “combines a lollipop with a flavored liquid in a squeeze dispenser that is then squirted into a trough-shaped cavity in the lollipop itself so that it can then be licked off.” For alleged patent infringement, trade dress infringement and a violation of the Lanham Act, Topps seeks an injunction, an order recalling the…
