Echoing a lawsuit brought a week earlier by a competitor in the pepper category, a consumer has filed a proposed class action against McCormick & Co. alleging that the company underfills its tins of black pepper because it reduced the pepper in each tin by 25 percent but retained the traditional packaging size. Dupler v. McCormick & Co., No. 15-3454 (E.D.N.Y., filed June 15, 2015). Facing rising prices for black pepper, the complaint argues, McCormick has begun selling 1.5-ounce, 3-ounce and 6-ounce pepper products in place of its 2-ounce, 4-ounce and 8-ounce products, respectively, but continues to use the larger “iconic” packaging it used for decades. This “slack fill” violates the Food, Drug, and Cosmetic Act, the plaintiff argues, and she seeks to represent a New York class in an action for damages, an injunction and attorney’s fees. The unfair-competition suit against McCormick alleging violations of the Lanham Act and…
Posts By Shook, Hardy & Bacon L.L.P.
A consumer has filed a putative class action against H.J. Heinz Co. alleging that the company’s frozen microwave French fries and tater tots contain partially hydrogenated oil (PHO), which contains artificial trans fat, despite packaging that indicates the products contain “0g trans fat.” Backus v. H.J. Heinz Co., No. 15-2738 (N.D. Cal., filed June 18, 2015). The complaint asserts that any intake of trans fat is unsafe and cites the U.S. Food and Drug Administration’s June 16, 2015, final determination that PHOs are not generally recognized as safe for any human food. The complaint further argues that the artificial trans fats in PHO cause several medical conditions such as cardiovascular disease, type 2 diabetes and Alzheimer’s disease. The plaintiff alleges violations of California unfair competition, false advertising and consumer legal remedies statutes and seeks class certification, damages, disgorgement of benefits, an injunction, and attorney’s fees. Issue 569
A California federal court has confirmed its ruling that a plaintiff in a class action against Twinings North America cannot pursue her claim of unjust enrichment because it duplicates her consumer protection claims. Lanovaz v. Twinings N. Am., No. 12-2646 (N.D. Cal., order entered June 10, 2015). Details about the court’s previous rulings narrowing the claims and certifying an injunctive class appear in Issues 485 and 521 of this Update. In her complaint, the plaintiff alleged that Twinings misbranded its green, black and white teas as a “natural source of protective antioxidants” despite failing to meet U.S. Food and Drug Administration standards for nutrient content claims. The court certified an injunctive class but denied the plaintiff’s unjust enrichment claim. The plaintiff, seeking certification for a damages class through that claim, filed a motion for reconsideration arguing that the damages available through the unjust enrichment claim were different from the damages available via…
A New Jersey federal court has again denied class certification to a trio of women suing Beam Global Spirits & Wine for allegedly misrepresenting Skinnygirl® Margaritas as using “only natural ingredients” despite containing sodium benzoate. Stewart v. Beam Global Spirits & Wine, Inc., No. 11-5149 (D.N.J., order entered June 8, 2015). Details about the court’s previous examination of certification appear in Issue 529 of this Update. The plaintiffs argued that the class could be ascertained through a three-level screening process designed to limit the number of fraudulent claims. The process would require potential claimants to provide a (i) claim form and receipt for the purchase of the product or (ii) a sworn affidavit with the dates, locations and prices of their Skinnygirl® Margarita purchases as well as a description of the bottle. In the latter case, the screeners would then check the potential claimants’ affidavits for accuracy to determine, for…
The European Food Safety Authority’s (EFSA’s) Scientific Committee has published guidance for renewing “applications of genetically modified [GM] food and feed authorized under Regulation (EC) No. 1829/2003.” Describing “the data requirements for renewal applications, “ the guidance directs applicants seeking reauthorization of GM food and feed products to provide the following: (i) “a copy of the authorization”; (ii) “post-market monitoring and post-market environmental monitoring reports”; (iii) “systematic search and evaluation of literature”; and (iv) “updated bioinformatics and any additional documents or studies performed by or on behalf of the applicant during the authorization period.” In addition, EFSA asks applicants “to assess the collected information and conclude whether the previous risk assessment remains valid.” “GM food and feed listed under Regulation (EC) 1829/2003 are within the scope of this new guidance. These include all those plants that have already been assessed by EFSA–such as maize, oilseed rape, soybean and cotton,” explains…
The Environment and Agriculture committees of the European Parliament have approved a draft bill that would ban the cloning of all farm animals, their descendants and products derived from them. The legislation would prohibit both the cloning within the EU and the importation of cloned animals from other countries. “We are well aware that cloning is allowed in certain third countries that EU trades with, but we cannot allow these products to be placed on the EU market,” Giulia Moi, an Italian Member of the European Parliament, said in a press release. “We also want to ensure that cloning of animals would not become a common practice within the EU.” The proposed law would require the import certificates for animals, animal germinal products, food and feed of animal origin to indicate that the products are not derived from cloned animals. The European Parliament will vote on the bill at a…
The U.S. Department of Agriculture’s Office of the Under Secretary for Food Safety and the Agricultural Marketing Service have announced an August 19, 2015, public meeting in Washington, D.C., to discuss draft U.S. positions for consideration at the 2nd Session of the Codex Committee on Spices and Culinary Herbs (CCSCH) slated for September 14-18 in Goa, India. The CCSCH sets global standards for dried and dehydrated spices and culinary herbs in whole, ground, cracked or crushed form. Agenda items at the August meeting include proposed draft standards for black, white and green pepper as well as cumin and oregano. See Federal Register, June 17, 2015. Issue 569
Following a request from Iowa Senators Joni Ernst (R) and Chuck Grassley (R), the U.S. Senate Committee on Agriculture, Nutrition and Forestry will convene a hearing on July 7, 2015, to discuss the ongoing outbreak of highly pathogenic avian influenza (HPAI), H5N2. The outbreak has “decimated” turkey, chicken and other poultry flocks in 15 states, and an estimated 30 million birds in Iowa have been affected. “This is an important opportunity to bring leaders and key stakeholders together to review the pandemic spread of this deadly disease, identify areas for improvement within response procedures, and set the state to ensure we are better prepared in the future,” Ernst was quoted as saying. Increases in wholesale table egg prices have reportedly “begun to reverse due to buyer resistance and limited demand,” according to the agriculture department’s Agricultural Marketing Service. See Press Release of Sen. Charles Grassley, June 11, 2015; The New…
The U.S. Food and Drug Administration (FDA) has announced the availability of industry guidance on food allergen labeling exemptions. Titled “Food Allergen Labeling Exemption Petitions and Notifications,” the guidance reportedly explains the agency’s “current thinking on the preparation of regulatory submissions for obtaining exemptions for ingredients from the labeling requirements for major food allergens in the Federal Food, Drug, and Cosmetic Act (FD&C Act) through submission of either a petition or a notification.” The guidance aims to clarify the criteria for labeling exemption petitions submitted under the Food Allergen Labeling and Consumer Protection Act of 2004, which requires all food and beverage labeling to declare the presence of major food allergens using their common names. Under these rules, companies can obtain labeling exemptions by demonstrating that an ingredient derived from a major allergen ‘‘does not cause an allergic response” or “‘does not contain allergenic protein.” See Federal Register, June 19,…
Analyzing data from more than 2,500 participants enrolled in a National Heart, Lung and Blood Institute study, Tufts University researchers have reportedly concluded that “a daily sugar-sweetened beverage [SSB] habit may increase the risk for non-alcoholic fatty liver disease (NAFLD).” Jiantao Ma, et al., “Sugar-sweetened beverage, diet soda and fatty liver disease in the Framingham Heart Study cohorts,” Journal of Hepatology, June 2015. The study relied on self-reported dietary questionnaires to assess consumption of SSBs—including soda and other sweetened carbonated beverages, fruit punches, lemonade and non-carbonated fruit drinks—then used computer tomography (CT) scans “to measure the amount of fat in the liver.” Although the study found no association between diet soda intake and NAFLD, it evidently reported “a higher prevalence of NAFLD among people who reported drinking more than one [SSB] per day compared to people who said they drank no [SSBs].” “Our study adds to a growing body of research…
