A consumer has filed a projected class action against Drew’s LLC, maker of Drew’s salad dressings and marinades, alleging the company misrepresents its products as “all natural” because they contain xanthan gum, disodium phosphate, lactic acid and citric acid. Haack v. Drew’s LLC, No. 16-6022 (S.D.N.Y., filed July 28, 2016). The complaint cites draft guidance from the U.S. Department of Agriculture distinguishing natural and synthetic ingredients and guidelines from the U.S. Food and Drug Administration to support the argument that a reasonable consumer would be confused by the company’s use of “natural” on its packaging. “Consumers lack the meaningful ability to test or independently ascertain or verify whether a product is natural, especially at the point of sale,” the plaintiff asserts. “Consumers would not know the true Nature of the ingredients merely by reading the ingredients label.” For alleged fraud and violations of New York and other state consumer-protection laws,…
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Four consumers have filed a putative class action against Barilla S.p.A. alleging the company sells its specialty pasta and standard pasta products in nearly identical boxes but underfills the specialty boxes, amounting to unpermitted slack fill. Berni v. Barilla S.p.A., No. 4196 (E.D.N.Y., filed July 28, 2016). In addition to its traditional pasta products, Barilla sells gluten-free, “Protein Plus” and whole-grain varieties of pasta. The specialty and traditional pastas appear to be sold in similar amounts, the complaint asserts, but the specialty boxes actually contain less pasta—while one box of penne contains 454 grams, for example, the “Protein Plus” variety contains 411 grams and the gluten-free version contains 340 grams, despite being sold in similarly sized boxes. This discrepancy results in the specialty boxes including about 10 to 25 percent non-functional slack fill, the plaintiffs allege. For an alleged violation of the New York Business Code and an unjust enrichment…
The Washington Legal Foundation (WLF) has filed an amicus brief with the Ninth Circuit Court of Appeals arguing the court should enjoin a San Francisco statute requiring advertisements of sugar-sweetened beverages (SSBs) to disclose health warnings related to their consumption. Am. Beverage Assoc. v. City of San Francisco, Nos. 16-16072 and 16-16073 (9th Cir., amicus brief filed August 4, 2016). The brief argues that the government cannot compel speech unless the speech is designed to dispel deception, and San Francisco has failed to show the warning prevents consumer deception. “The First Amendment protects not only the right to speak but also the right not to speak,” WLF Chief Counsel Richard Samp said in an August 4, 2016, press release. “In the absence of evidence that advertisements for sugar-sweetened beverages are deceiving consumers, soft drink manufacturers should not be required to include ominous health warnings in their ads.” Issue 613
Following an investigation into potential criminal violations of federal immigration laws, Mary’s Gone Crackers Inc. will pay $1.5 million and establish a corporate compliance program but will not be prosecuted, the U.S. Department of Justice has announced. The investigation determined that 48 of the company’s employees were ineligible to work in the United States; Mary’s informed Immigration and Customs Enforcement that the employees had left the company, but further investigation found that Mary’s hired at least 13 of those employees back under different names. In addition to the $1.5-million payment, Mary’s must establish an anonymous tip line for employees to report noncompliance issues, provide I-9 training to employees and report compliance measures to the U.S. Attorney’s Office for two years. Issue 613
The Southern Poverty Law Center (SPLC) has urged the U.S. Occupational Safety and Health Administration to investigate Farm Fresh Foods, LLC, arguing the company forced sanitation workers to race against one another to carry and unpack 80-pound crates of chicken. The company allegedly required workers to unload raw chicken after cleaning the processing plant without washing their hands or changing clothes; SPLC asserts that workers’ concerns about contaminating the chicken were ignored. Farm Fresh also allegedly denied workers bathroom breaks, disciplined them for walking around empty-handed and jeered at them while they worked. “It’s clear from the treatment of these workers that Farm Fresh Foods has little regard for its employees,” Naomi Tsu, SPLC deputy legal director, said in a July 26, 2016, press release. “Farm Fresh needs to listen to workers rather than retaliating against them. We’ve seen this happen again and again in the poultry industry—these companies must…
The U.S. Department of Agriculture’s National Organic Standards Board (NOSB) has removed five non-organic nonagricultural substances—egg white lysozyme, cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate—from the National List of Allowed and Prohibited Substances governing the use of synthetic and non-synthetic substances in organic food production and handling. After determining that these substances “are no longer necessary or essential for organic handling” based on public comments and supporting documents, NOSB decided to let their use exemptions expire on September 12, 2016. According to NOSB, suitable alternatives or new processing and handling practices have eliminated the need for (i) egg white lysozyme as a “processing aid/preservative for controlling bacteria that survived the pasteurization process of milk that is used for cheese manufacture”; (ii) cyclohexylamine, diethylaminoethanol and octadecylamine “for use only as a boiler water additive for packaging sterilization”; and (iii) tetrasodium pyrophosphate “for use only in meat analog products.” See Federal Register, August…
The Federal Trade Commission (FTC) and U.S. Department of Agriculture (USDA) have released an August 10, 2016, joint report examining consumers’ perceptions of “recycled content” and “organic” claims, especially for non-agricultural products and services. Using data from Internet-based questionnaires completed by 8,016 respondents, the study sought to determine whether consumers view products marketed with such claims as having “particular environmental benefits or attributes.” Among other things, FTC and USDA asked consumers to assess the accuracy of recycled content and organic claims when applied to products made with varying types of recycled materials and varying proportions of “man-made” substances. While the agencies reported no significant difference among consumer perceptions of products that used either pre- or post-consumer recycled materials, “a significant minority of respondents disagreed that the organic claims accurately describe the product” when a small percentage of materials (i.e., “less than 1%; 1% to 5%; and 5% to 10%”) was…
Taking issue with language that only loosely links alcohol consumption to increased cancer incidence, an article in the July 2016 issue of Addiction suggests that 5.8 percent of all cancer deaths worldwide are caused by alcohol-attributable cancers of the oropharynx, larynx, esophagus, liver, colon, rectum, and female breast. Jennie Connor, “Alcohol consumption as a cause of cancer,” Addiction, July 2016. After reviewing “meta-analyses identified from the Medline database and the archives of the International Agency for Research on Cancer,” a researcher with the University of Otago’s Department of Preventive and Social Medicine reports a “dose–response relationship” between alcohol consumption and cancer, “without evidence of threshold of effect” and regardless of beverage type. “Expressions such as ‘alcohol-related cancer’, ‘alcohol-attributable cancer’ and the effect of alcohol on ‘the risk of cancer’ incorporate an implicit causal association, but are easily interpreted as something less than cancer being caused by drinking,” opines the study…
Following a consumer complaint, the Beer Institute has reviewed Anheuser-Busch Companies, LLC’s Super Bowl ad featuring comedians Seth Rogen and Amy Schumer discussing the “biggest caucus in the country” and determined the ad does not violate the industry group’s marketing standards. Under the standards, “advertising and marketing materials should not contain languages or images that are lewd or indecent in the context presented and the medium in which the material appears.” The consumer argued that the use of “caucus” could be interpreted as sexually suggestive in context, but the review board disagreed, finding, “From the perspective of a reasonable adult consumer of legal drinking age, the mere use of a sexually suggestive pun would not be seen as ‘vile,’ ‘inciting to lust or lechery,’ patently offensive, or offending recognized standards of good taste.” The board pointed to similar puns appearing on “Live with Kelly & Michael” and “comments from Marco…
Two horse owners have filed a lawsuit against Archer Daniels MidlandCo. alleging feed produced by its subsidiary, ADM Alliance Nutrition, was contaminated with monensin, a cattle-feed additive poisonous to horses. Berarov v. Archer Daniels Midland Co., No. 16-7355 (N.D. Ill., filed July19, 2016). The plaintiffs argue that ADM knowingly manufactured cattle feed containing monensin in the same facility as its horse feed and supplement production, resulting in cross-contamination between the two. The complaint details the effects of monensin on horses, including equine heart failure and other major organ damage, which the plaintiffs argue can occur with doses as low as 1.38 mg/kg of body weight. In a statement,ADM disputed this toxicity level, arguing that a horse can safely consume 9.5 mg/kg of body mass, according to the complaint. For allegations of negligent misrepresentation, strict product liability, unjust enrichment, breach of warranties and violations of Illinois consumer-protection laws, the plaintiffs seek class…
