Posts By Shook, Hardy & Bacon L.L.P.

The New York City (NYC) Board of Health has reportedly agreed to consider a proposed amendment to Article 81 of the NYC Health Code that would require food items containing more than 2,300 milligrams of sodium to be singled out on menus and menu boards with a salt-shaker icon and an accompanying warning statement. The proposed initiative would affect restaurant chains with more than 15 locations nationwide, and the mandated warning would state that the “sodium content of this item is higher than the total daily recommended limit (2,300 mg). High sodium intake can increase blood pressure and risk of heart disease and stroke.” Health officials assert that the average NYC adult consumes about 3,200 mg of salt daily (40 percent more than the recommended daily limit) and that restaurant and processed foods are the greatest sources of dietary sodium. If adopted, the warnings would take effect on December 1,…

A June 10, 2015, petition filed by consumer and environmental groups asks the Food and Drug Administration (FDA) to ban the following synthetic substances widely used in baked goods, ice cream and beverages: (i) benzophenone (also known as diphenylketone); (ii) ethyl acrylate; (iii) eugenyl methyl ether (also known as 4-allylveratrole or methyl eugenol); (iv) myrcene (also known as 7-methyl-3-methylene- 1,6-octadiene); (v) pulegone (also known as p-menth-4(8)-en-3-one); (vi) pyridine; (vii) styrene; and (viii) trans,trans-2,4-hexadienal. Signed by the Center for Science in the Public Interest, National Resources Defense Council, Center for Environmental Health, Environmental Working Group, Center for Food Safety, Consumers Union, and Improving Kids’. Environment, the petition claims that the flavorings are not safe for use in human food under the Delaney Clause of the Food Additives Amendment Act (21 U.S.C. § 348 (c)(3)(A)) because the National Toxicology Program and other agencies have linked them to animal or human cancers. The…

“Food is not tobacco… But the public health community is concerned about both diet and tobacco use for a very good reason,” writes Center for Science in the Public Interest (CSPI) Executive Director Michael Jacobson in a June 2, 2015, Huffington Post blog post claiming that both industries “share some common bloodlines.” Jacobson claims that both industries not only market to children, but purportedly “blame their customers for the harm caused by their products.” In addition, he argues that these companies emphasize personal responsibility while overlooking “the extent to which companies persuade, lure, and manipulate customers—including children—into making the very decisions that companies say should be up to them.” “Like Big Tobacco, Big Food goes to great lengths to muddy the waters and obscure the connections between soda and disease,” the article concludes. “Big Tobacco and Big Food are now separate industries, but the playbook is much the same. How…

During a May 31, 2015, interview with BBC One’s “The Andrew Marr Show,” National Health Service (NHS) England Chief Executive Simon Stevens called on industry stakeholders to reduce the amount of sugar in food and beverage products. In particular, he claimed that “one in three of our teenagers are drinking high-energy, sugary drinks,” urging “responsible retailers [and] food producers” to reformulate their products as they once did to reduce salt content. “We’ve done very well in terms of cutting smoking and teenage pregnancy and drink driving,” Stevens was quoted as saying. “But the new smoking is obesity. One in five cancer deaths is now caused by obesity.” See Press Association, May 31, 2015.   Issue 567

Buckfast Abbey, an English monastery approaching its millennial anniversary, has drawn criticism for its production of a sweet caffeinated wine, The New York Times reports. The beverage, which the abbey sells in 750-milliliter bottles through a distributor, is 15 percent alcohol and contains more than 300 milligrams of caffeine. The fortified wine was originally sold as a tonic, intended for medicinal purposes, but in recent years has gained popularity in Scotland among young people. Critics cite a 2009 report for the Scottish prison service that purportedly found that four in 10 young offenders ranked Buckfast tonic wine as their favorite drink, and 43.3 percent of respondents said they consumed the beverage before committing a crime. “There is no doubt that caffeine-alcohol mixers make wide-awake drunks,” a physician and member of Scottish Parliament, Richard Simpson, told the Times. “If you drink enough alcohol you eventually become comatose, but if you combine…

The British Medical Association in Scotland (BMA Scotland) has reportedly backed legislation under consideration by the Scottish Parliament’s Health and Sport Committee that seeks to ban alcohol advertising at all events geared toward children younger than age 18. According to media reports, the proposed measure would also prohibit the marketing of alcoholic beverages near schools in addition to limiting ads on retail premises. “The alcohol industry’s sponsorship of entertainment or sporting events can see children become walking billboards for alcohol products, exposing them to alcohol brands while they are at an impressionable age,” BMA Scotland Peter Bennie told reporters. “It should not be acceptable for the alcohol industry to sponsor and brand events that are aimed at under-18s and MSPs should use this opportunity to take action on alcohol advertising.” See BBC News, June 4, 2015.   Issue 567

The Environmental Working Group (EWG), a “non-profit, non-partisan organization dedicated to protecting human health and the environment,” has issued an analysis of more than 250 foods that identifies which of the products’ cans are lined with bisphenol A (BPA) as well as an online petition imploring consumers to encourage companies to stop using BPA-based epoxy resins in can linings. “The biggest problem is that people have no reliable way of knowing whether they are buying food that is laced with this toxic chemical,” an EWG representative was quoted as saying. “Federal regulations do not require manufacturers to label their products to identify cans with BPA-based linings. … We hope to arm people with the critical information they need to avoid BPA and make smarter shopping decisions.” EWG classifies the food companies mentioned in the survey into four categories of “players,” claiming that 78 brands (“worst” players) use BPA-lined cans for…

The shareholder advocacy group As You Sow has announced the success of a three-year campaign targeting baby formula purportedly made with ingredients derived from genetically modified organisms (GMOs). According to a May 27, 2015, press release, the group drafted a shareholder resolution asking Abbott Laboratories to remove GMOs from its Similac® Advance® baby formula. In response to the resolution, which apparently garnered support from $2.7 billion in Abbott shares (6 percent of voting shares) at the company’s annual meeting, Abbott has reportedly agreed to offer a GMO-free version of its popular formula. Among other things, As You Sow claims that GMO crops “are contributing to several environmental concerns in the United States,” including the allegedly excessive use of pesticides and herbicides. “Polls show that 93% of Americans want GMOs to be labeled or taken out of their foods. Concerned parents are driving the decisions to have safer food products—they are creating…

Yum! Brands Inc.’s KFC has announced on its Chinese-language website that it has filed lawsuits against three Chinese media companies for allegedly spreading rumors that the company has bred its chickens to have eight legs and six wings. The complaint, filed in Shanghai Xuhui District People’s Court, reportedly alleges that the media companies disseminated false information on social media about KFC’s food quality, including digitally altered photos of deformed chickens and rumors of maggots in a delivery order. KFC has more than 4,600 restaurants in China, accounting for about one-half of its revenue. The company reportedly alleges that 4,000 defamatory messages were viewed more than 100,000 times and seeks 1.5 million yuan, or about US$242,000, from each media company as well as an apology. See The Wall Street Journal and Reuters, June 1, 2015.   Issue 567

Absolut Co. has filed a complaint and a motion for an injunction against Happy Hearts Wine LLC, a New York City importer of Israeli wine, after Absolut noticed a Certificate of Label Approval filed with the Alcohol and Tobacco Tax and Trade Bureau for “Kahfua,” which it alleges is too close to Kahlua®. Absolut Co. Aktiebolag v. Happy Hearts Wine, LLC., No.15-3224 (E.D.N.Y., motion filed June 3, 2015). Happy Hearts’ Kahfua, a “coffee expresso [sic] liqueur,” is packaged in a similar brown bottle with a similar yellow and red label written in a similar script to Kahlua®, Absolut argues in its motion. It further alleges that Happy Hearts has acted with bad faith by infringing Absolut’s trademarks. “Simply stated, there can be no ‘innocent explanation’ for such a blatant knockoff,” the motion asserts. In addition to trademark infringement, Absolut alleges that Happy Hearts is engaging in trademark counterfeiting, which requires…

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