A California federal court has dismissed a lawsuit alleging that Diageo PLC misrepresents Red Stripe® beer as brewed in Jamaica, finding “no reasonable consumer would be misled into thinking that Red Stripe is made in Jamaica with Jamaican ingredients based on the wording of the packaging and labeling.” Dumas v. Diageo PLC, No. 15-1681 (S.D. Cal., order entered April 6, 2016). Details about the complaint appear in Issue 574 of this Update. Bottle trays for six and 12-packs of Red Stripe® include, as the court explained, “the language ‘Jamaican Style Lager and ‘The Taste of Jamaica,’” the Diageo-Guinness USA logo and a disclaimer on the bottom of the packaging that states, “Brewed and bottled by Red Stripe Beer Company Latrobe, PA.” Citing a Second Circuit opinion finding that the description of a knife as a “Swiss Army knife” does not imply it was made in Switzerland, the court found that the “mere…
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The Salt Institute has penned an April 11, 2016, letter asking the U.S. Department of Agriculture (USDA) and Department of Health and Human Services (HHS) to withdraw the sodium provisions included in the 2015-2020 Dietary Guidelines for Americans, which advise individuals to consume less than 2,300 milligrams (mg) per day of sodium. According to the Salt Institute, these provisions—in addition to those that appear in the 2010 Dietary Guidelines for Americans—violate the statutory mandate that requires them to reflect “the preponderance of the scientific and medical knowledge which is current at the time the report is prepared.” In particular, the letter argues that both the 2010 and 2015 Dietary Guidelines Advisory Committees (DGACs) based their sodium recommendations on a 2004 Institute of Medicine (IOM) report that failed to contain enough evidence to set a recommended dietary allowance. “Rather than thoroughly assessing the current scientific and medical knowledge, the Agencies reached…
The U.S. Food and Drug Administration (FDA) has approved folic acid fortification of corn masa flour in response to a 2012 petition from the March of Dimes Foundation, National Council of La Raza and other groups. FDA’s action allows manufacturers to voluntarily add up to 0.7 milligrams of folic acid per pound of corn masa flour. Used in tortillas, tamales and other foods, corn masa flour is a dietary staple for many people of Mexican and Central American descent, and the petitioners sought the voluntary fortification to increase the folic acid intake for U.S. women of childbearing age who regularly consume such products. Folic acid is a synthetic form of folate, a B vitamin linked to the decreased incidence of neural tube defects. See Federal Register, April 15, 2016.
The U.S. Department of Agriculture’s (USDA’s) Agricultural Marketing Service (AMS) has proposed amendments to organic livestock and poultry production requirements to clarify “how producers and handlers must treat their livestock and poultry to ensure their health and well-being throughout life.” Based on recommendations from the National Organic Standards Board, the draft rules also specify “which physical alterations are allowed and prohibited” and establish “minimum indoor and outdoor space requirements for poultry.” In particular, the proposed amendments provide for “a feed ration sufficient to meet nutritional requirements, including vitamins, minerals, protein and/or amino acids, fatty acids, energy sources, and fiber (ruminants), resulting in appropriate body condition.” They also limit physical alterations to those performed only at “a reasonably young age, with minimal stress and pain and by a competent person,” and only in cases determined to “benefit the welfare or hygiene of the animals, or for identification purposes or safety.” In…
“The U.S. Supreme Court recently deviated from its historically stringent view on class certification and affirmed an Eighth Circuit decision to uphold certification of a class of Tyson Foods, Inc. employees who brought suit against Tyson for a violation of the Fair Labor Standards Act of 1938 (FLSA),” Shook Miami attorneys Frank Cruz-Alvarez and Rachel Canfield explain in an April 13, 2016, analysis for the Washington Legal Foundation’s Legal Pulse. The article first describes the suit’s origins; Tyson initially paid all employees for an equal amount of time spent donning and doffing protective gear but later adjusted the policy to pay some employees for additional “don and doff” time. Cruz-Alvarez and Canfield note that “Plaintiffs alleged Tyson’s failure to compensate them for time spent performing this ‘integral and indispensable’ work activity violated the FLSA by lengthening their workweek beyond forty hours without providing them with overtime pay.” They also note…
In this April 7, 2016, article about changing dietary recommendations and rising obesity rates, Ian Leslie resurrects the forgotten work of John Yudkin, a U.K. nutritionist who in 1972 authored a book titled Pure, White, and Deadly about the purported dangers of excess sugar consumption. Drawing parallels between this earlier research and that of contemporary anti-sugar crusader Robert Lustig, Leslie suggests that the scientific community effectively silenced Yudkin when his data came into conflict with the prevailing “fat hypothesis” backed by “brilliant, charismatic, and combative” Ancel Keys, who posited that dietary fat caused heart disease and other metabolic diseases. As Leslie explains, “[The] sharp fluctuations in Yudkin’s stock have had little to do with the scientific method, and a lot to do with the unscientific way in which the field of nutrition has conducted itself over the years. This story, which has begun to emerge in the past decade, has…
The fourth edition of a Center for Science in the Public Interest (CSPI) survey has reported a 4-percent reduction in sodium across 451 packaged and restaurant foods over a 10-year period. Titled “Salt Assault: Brand-name Comparisons of Processed Foods,” the report claims that, on average, surveyed items reduced their sodium content by 41 milligrams per 100 grams of product. The consumer watchdog notes, however, that many products still have room to make additional reductions. Citing “dramatic variations in sodium content across different brands of a given food,” the report singles out products in the canned diced tomato, whole wheat bread and ketchup categories—among others—for further improvement. In particular, CSPI urges the U.S. Food and Drug Administration (FDA) and Department of Agriculture to not only set mandatory sodium limits for processed and restaurant foods, but require warning labels on those that are high in sodium. “For 40 years, the food industry has…
Consumer group As You Sow has notified the state of California that a number of chocolate manufacturers are allegedly selling chocolate with levels of lead and cadmium that exceed limits set by the state’s Safe Drinking Water and Toxic Enforcement Act (Prop. 65). Testing by the organization allegedly indicated that 35 of the 50 chocolate products sampled—including those from Trader Joe’s, Whole Foods, Godiva and Lindt, among others—contained enough lead or cadmium to trigger Prop. 65 warning requirements. As You Sow has filed 60-day notices with 18 manufacturers based on its testing; following the 60-day period, the organization may initiate litigation against the companies if public officials have not sought enforcement of the statute. “Lead and cadmium accumulate in the body, so avoiding exposure is important, especially for children,” As You Sow President Danielle Fugere said in a March 23, 2016, press release. “Our goal is to work with chocolate…
A California federal court has granted The Kroger Co.’s motion to dismiss a lawsuit alleging the company’s breadcrumbs product includes partially hydrogenated oil, which contains trans fat, despite labeling the product as “0g Trans Fat.” Hawkins v. Kroger Co., No. 15-2320 (S.D. Cal., order entered March 17, 2016). The court found that the mislabeling claims failed for two reasons. First, a challenge to a “0g Trans Fat” labeling claim is preempted, the court said, because U.S. Food and Drug Administration regulations require that foods with less than one-half of a gram of trans fat be labeled as “0g.” Second, the plaintiff failed to prove actual reliance on the allegedly deceptive statements, the court found, rejecting her argument that she “is a busy person and cannot reasonably inspect every ingredient of every food that she purchases” despite having bought the bread crumbs six times per year for 15 years but only noticing…
A Florida federal court has rejected a Florida dairy farmer’s challenge to the state’s standard of identity for skim milk, which dictates that its nutrient content must be the same as that of unfortified whole milk, requiring the addition of vitamin A after processing. Ocheesee Creamery v. Putnam, No. 14-0621 (N.D. Fla., Tallahassee Div., order entered March 30, 2016). The farmer’s company, Ocheesee Creamery, skimmed the cream from milk and sold the leftover product as “skim milk” without fortifying it with vitamin A. Florida inspectors told the dairy farmer she must adjust the nutrient level or label the milk “imitation,” and she filed a lawsuit challenging the rule. Additional details on the case appear in Issue 555 of this Update. The court found that the state standard of identity and its federal counterpart in the federal Food, Drug, and Cosmetic Act “easily pass muster” under the First Amendment test for…
