A California federal court has denied the American Beverage Association’s (ABA’s) attempt to preliminarily enjoin the enforcement of a law requiring manufacturers of sugar-sweetened beverages (SSBs) to provide a warning about the alleged health risks associated with SSB consumption. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., order entered May 17, 2016). Further details about the lawsuit appear in Issues 573, 586 and 592 of this Update. The court first assessed the ABA’s argument that the law would burden noncommercial speech in addition to regulating commercial speech, which would trigger the highest level of scrutiny. ABA members’ communications to consumers are not limited to commercial speech, the organization argued, because they also publicize other messages, such as promotion for the Pride Parade and the Chinese New Year’s Festival. The court disagreed, finding the amount of noncommercial speech affected was not substantial. The court then reviewed whether…
Posts By Shook, Hardy & Bacon L.L.P.
Health Canada and the Canadian Food Inspection Agency have determined that AquAdvantage Salmon “is as safe and nutritious for humans and livestock as conventional salmon.” Approving the genetically engineered (GE) salmon for sale in Canada, the two agencies cited a similar decision issued by the U.S. Food and Drug Administration in November 2015. “Health Canada requires labelling for food products, including genetically modified foods, where clear, scientifically established health risks or significant changes to the nutritional qualities of the food have been identified and can be mitigated through labelling,” concludes the agency. “In this case, given that no health and safety concerns were identified, there are no special labeling requirements for AquAdvantage Salmon.” See Health Canada News Release, May 19, 2016. Issue 605
Gov. Andrew Cuomo (D-N.Y.) has proposed legislation that would revise the Alcoholic Beverage Control Law (Blue Laws) to modernize the manufacture and sale of alcoholic beverages in New York state. The new rules would also consolidate licensing and reduce “burdensome fees for wineries, breweries, distilleries and cideries statewide.” In particular, the legislation would (i) lift restrictions on Sunday morning sales of alcoholic beverages at on-premises establishes; (ii) allow the New York State Liquor Authority to consider exceptions to the “Two Hundred Foot Law” that prohibits the dispensation of full liquor licenses to establishments within 200 feet of a school or place of worship; (iii) combine craft manufacturing licenses into one application to reduce the paperwork burden on small breweries, wineries and distilleries; (iv) authorize the sale of wine in growlers and allow customers to take home unfinished bottles of wine; (v) reduce fees for craft beverage salespeople; and (vi) reduce…
The U.S. Food and Drug Administration (FDA) has announced revisions to the Nutrition Facts label designed to emphasize “the link between diet and chronic diseases such as obesity and heart disease.” In addition to highlighting calories, servings per container and serving-size declarations through a combination of increased type size and boldface, the new labels will (i) require “added sugars” in grams and as a percent daily value, (ii) require Vitamin D and potassium values, and (iii) make Vitamins A and C optional. Citing scientific research, FDA has updated several daily values and eliminated “Calories from Fat,” but increased mandatory serving sizes to better reflect food consumption data. Food packages containing one to two servings that are typically consumed in one sitting must list calories and nutritional information for the entire packaged portion. Manufacturers must also use dual-column labels for 24-ounce sodas, ice cream pints and other foods and beverages that…
New research claims that the daily consumption of artificially sweetened beverages (ASBs) during pregnancy is associated with increased infant body mass index (BMI). Meghan Azad, et al., “Association Between Artificially Sweetened Beverage Consumption During Pregnancy and Infant Body Mass Index,” JAMA Pediatrics, May 2016. Using food-frequency questionnaire data from 3,033 mother-infant dyads enrolled in the Canadian Healthy Infant Longitudinal Development (CHILD) study, researchers reportedly determined that, when compared to children whose mothers did not consume ASBs during pregnancy, those born to the 5.1 percent of mothers who imbibed ASBs daily were twice as likely to be overweight at age 1. “Infant birth weight was not affected, suggesting that maternal ASB consumption influenced postnatal weight gain rather than fetal growth,” explain the study authors. “These associations were independent of material BMI, diabetes, total energy intake, diet quality, and other known obesity risk factors. No comparable associations were identified for SSB [sugar-sweetened…
The National Milk Producers Federation, International Dairy Foods Association and U.S. Dairy Export Council have authored a May 9, 2016, letter to President Barack Obama (D), asking the White House to reject proposed World Health Organization (WHO) guidance that “would discourage consumption of nutritious dairy products by young children.” Slated for presentation at the 69th World Health Assembly on May 23-28, 2016, the draft guidelines seek to end the promotion of breast-milk substitutes, including all milk and fortified soy milk, intended for consumption by children younger than age 3. Among other things, the proposal not only places restrictions on the marketing of foods for infants and young children, but also stipulates that “the messages used to promote foods for infants and young children should support optimal feeding and inappropriate messages should not be included.” The guidelines specifically preclude the indirect crosspromotion of breast-milk substitutes with other food products, as well…
Two strawberry breeders formerly of the University of California, Davis have filed a lawsuit against the university targeting its strawberry-breeding program, which they argue is denying them the opportunity to license the breeds they helped cultivate. Cal. Berry Cultivars LLC v. Regents of U. of Cal., No. 16-2477 (N. Cal., removed to federal court May 6, 2016). The scientists left the program in 2014 to start their own cultivation company with a former California secretary of food and agriculture. Their departure triggered a lawsuit from the California Strawberry Commission, which asserted the university was neglecting the program. The scientists now reportedly argue the university refuses to license—“on a non-exclusive basis at a reasonable royalty”—the plants to California Berry Cultivars to suppress competition, amounting to allegations of conversion, breach of contract, breach of faith, breach of fiduciary duty and unfair competition. Details about the settlement of the previous lawsuit appear in…
A consumer has filed a proposed class action against Caribou Coffee Co. Inc. arguing the company violated the Telephone Consumer Protection Act (TCPA) by sending her “numerous unsolicited SMS text messages.” Farnham v. Caribou Coffee Co. Inc., No. 16-0295 (W.D. Wis., filed May 5, 2016). The plaintiff asserts that Caribou sent her 50 text-message advertisements from March to May 2016 without her consent. For allegations of negligent and willful violations of TCPA, the plaintiff seeks statutory damages of $500 per negligent violation and $1,500 per willful violation as well as an injunction and class certification. Issue 604
Consumers have filed a putative class action against Albertson’s Inc. and Safeway Inc. alleging the companies raise prices on meat during “buy one get one free” (BOGO) deals, resulting in consumers “actually paying for the meat that is sold as ‘free’ in these special sales.” Stewart v. Albertson’s Inc., No. 16-15125 (Ore. Cir. Ct., Multnomah Cty., filed May 4, 2016). The complaint asserts the stores rotate BOGO offers on a number of meat products, including pork chops, chicken breast and beef sirloin, but offer the products at lower prices when they are not on special. Further, the stores “sell the same meat products at regular [loyalty card] prices that are lower than the BOGO prices. When they do this, Defendants sometimes sell the same product under different names.” The plaintiffs offer an example: “Safeway sold boneless, skinless chicken breasts to [loyalty card] members for $1.99 per pound. At the same…
The Ninth Circuit Court of Appeals has affirmed a dismissal of a consumer lawsuit against Costco Wholesale Corp. alleging mislabeling claims against VitaRain Tropical Mango Vitamin Enhanced Water Beverage. Maple v. Costco Wholesale Corp., No. 13-36089 (9th Cir., order entered May 9, 2016). The plaintiff had alleged the product was mislabeled because the product contains added caffeine, precluding the use of “natural” on the label. The district court dismissed the case because the plaintiff did not read the label before purchasing it; on appeal, the plaintiff asserted that he could amend the complaint to add “a subclass of plaintiffs who did read the relevant parts of the label.” Because he did not rely on the label, the plaintiff’s claim failed, and “the potential existence of other classes of which Plaintiff is not a member is irrelevant,” the court found. Further, the “district court abused its discretion by dismissing the action…
