The Government of Barbados has announced a 10-percent excise tax on the purchase of locally produced and imported sugar-sweetened beverages as of August 1, 2015. The Healthy Caribbean Coalition (HCC) lauded the action, citing consumption of sugary drinks as a major contributing factor to escalating rates of obesity and related health conditions such as diabetes, cardiovascular disease and cancer. See Open Letter to HCC Membership, June 16, 2015. Issue 570
Posts By Shook, Hardy & Bacon L.L.P.
The European Food Safety Authority’s (EFSA’s) Panel on Contaminants in the Food Chain (CONTAM Panel) has issued a scientific opinion assessing the health risks of acute and chronic dietary exposure to chlorate, “a byproduct when using chlorine, chlorine dioxide or hypochlorite for the disinfection of drinking water, water for food production and surfaces coming into contact with food.” At the request of the European Commission, the opinion considers the presence of chlorate in both drinking water and food, setting “a tolerable daily intake (TDI) of 3 micrograms per kg (µg/kg) of body weight per day for long-term exposure to chlorate in food,” with “a recommended safe intake level for a daily intake (called the ‘acute reference dose’) of chlorate of 36 µg/kg of body weight per day.” After reviewing data collected by the EFSA Evidence Management Unit, the CONTAM Panel identified drinking water as “the main average contributor to chronic dietary exposure,”…
The Wisconsin-based Cornucopia Institute has asked the Federal Trade Commission (FTC) to investigate labeling associated with Whole Foods Market, Inc.’s Responsibly Grown fresh produce rating system for potential consumer fraud and mislabeling. According to a June 23, 2015, letter to the director of FTC’s Bureau of Consumer Protection, Cornucopia is “concerned that Whole Foods has not met the standards set forth in its recently developed ‘Responsibly Grown’ produce rating system in violation of its stated guidelines, thus grossly misrepresenting the production practices utilized in growing some of the produce it offers for sale to its customers.” Cornucopia suggests that “expedited communication” with Whole Foods resulting in a consent agreement under which signage and labeling related to the rating program are immediately removed “might best serve the public rather than investing taxpayer resources in a time-consuming comprehensive investigation that might result in monetary fines or other penalties.” Issue 570
The New York City Department of Consumer Affairs (DCA) has alleged that Whole Foods Market, Inc. “routinely overstated the weights of its prepackaged products—including meats, dairy and baked goods— resulting in customers being overcharged.” According to a June 24, 2015, press release, DCA found mislabeled weights on 80 different types of products sold at New York City locations, with 89 percent purportedly failing to meet federal standards “for the maximum amount that an individual package can deviate from the actual weight.” “The overcharges ranged from $0.80 for a package of pecan panko to $14.84 for a package of coconut shrimp,” claims the agency. “The fine for falsely labeling a package is as much as $950 for the first violation and up to $1,700 for a subsequent violation. The potential number of violations that Whole Foods faces for all pre-packaged goods in the NYC stores is in the thousands.” In particular,…
U.S. Sens. Dick Durbin (D-Ill.), Dianne Feinstein (D-Calif.) and Kirsten Gillibrand (D-N.Y.) are seeking a study from the Government Accountability Office (GAO) about the practicality of a single federal agency charged with oversight for food safety. “Given concerns about the fragmented federal food safety system in the United States and potential lessons to be learned from consolidation efforts in other countries,” the senators wrote in a June 23, 2015, letter, “we request GAO’s assistance in addressing the following questions: (1) What alternative organizational structures have been identified to streamline and consolidate the U.S. food safety system? (2) What are the costs and benefits associated with each alternative and what implementation challenges exist, if any? [and] (3) What lessons learned and best practices can be gleaned from other countries’ efforts to consolidate their food safety functions and systems?” In January 2015, the senators reintroduced with Rep. Rosa DeLauro (D-Conn.) legislation that would…
Shook, Hardy & Bacon attorneys Madeleine McDonough and Jara Settles have co-authored a chapter in the Food and Drug Law Institute’s Top 20 Food and Drug Cases, 2014 and Cases to Watch, 2015. They discuss the district court’s decision in Khasin v. Hershey, in which a consumer challenged the confectioner’s label claims of health value and antioxidant content in several products. McDonough and Settles detail factors in the court’s rationale for dismissing most of the case, including a detrimental admission that the plaintiff did not rely upon the labeling when purchasing the products at issue. “Khasin highlights the importance of demonstrating actual reliance in putative consumer protection class actions,” they explain. “After months of briefing and discovery, a simple conversation (in the form of a deposition) destroyed the vast majority of plaintiff’s claims.” The court later dismissed the rest of the plaintiff’s claims as well. Details of the dismissal appear in Issue…
The U.S. Food and Drug Administration (FDA) has issued a determination revoking the generally recognized as safe (GRAS) status of partially hydrogenated oils (PHOs), “the primary dietary source of industrially-produced trans fatty acids.” To comply with the declaratory order, food and beverage companies must remove PHOs from products by June 18, 2018, or request food additive approval for specific uses of PHOs. Concluding that there is no longer expert consensus as to the safe use of artificial trans fat in human food, FDA argues that the action is “expected to reduce coronary heart disease and prevent thousands of fatal heart attacks every year.” In the wake of its November 2013 tentative decision, the agency apparently received more than 6,000 comments from individuals, industry and trade associations, consumer groups, and government officials, the majority of which purportedly supported the reduction of trans fat in the food supply. “Studies show that diet…
French restaurateurs and food critics are calling for new food-labeling rules after a documentary airing on France 2 reported that some of the country’s food manufacturers have been using vegetable fat-based substitutes for fresh milk when producing cheese products. In “Artificial Cheese on Your Plate” (“Du Faux Fromage Dans Votre Assiette”), cheese producers are reportedly shown stocking bags of processed cheese made with water, vegetable fat, lactic acid, table salt, and potassium sorbate, while others are shown mixing genuine mozzarella with cheese made without milk to create a popular substitute known as “50-50.” Many of the cheese substitutes also contain palm oil. A nutritionist told the documentary producers that the cheese substitutes lack the positive qualities of real cheese because they contain saturated fat without providing calcium as well. See The Daily Telegraph, June 14, 2015. Issue 569
“In order to bolster its credibility, reflect objective science that has the public’s best interest in mind, and hold the food industry more accountable, it is paramount that ASN reconsider its financial ties to the junk food industry,” concludes public health lawyer and activist Michele Simon in an investigation that purports to expose conflicts of interest between the American Society for Nutrition (ASN) and various food and beverage companies. Among other things, Simon contends that “powerful junk food companies purchase ‘sustaining partnerships’ from ASN, gaining access to the nation’s leading nutrition researchers at their annual meetings, and in their policy positions.” Issue 569
A consumer has filed a putative class action against Ghirardelli alleging that the company deceptively advertised its white chocolate products as containing chocolate, white chocolate or cocoa butter. Vega-Encarnacion v. Ghirardelli Chocolate Co., No. 15-1821 (D.P.R., filed June 16, 2015). Three of the products at issue in the complaint were the subjects of an October 2014 class action settlement open only to consumers who purchased the product “in the United States,” so the Puerto Rican consumer seeks to represent those similarly situated in U.S. territories. Additional details about the settlement appear in Issue 540 of this Update. The complaint cites the U.S. Food and Drug Administration’s (FDA’s) definitions of “chocolate” and “white chocolate,” which include required levels of cacao-derived products such as cocoa butter. Ghirardelli’s white-chocolate products—baking chips, confectionery coating wafers and ground white chocolate flavor—do not contain any white chocolate as defined by FDA, but merely white-chocolate flavoring, the…
