In a recent journal article, a Babson College marketing law professor discusses legal disputes over the labeling of food as “natural,” noting drawbacks of using courts as public policy developers on the issue. Ross D. Petty, “‘Natural’ Claims in Food Advertising: Policy Implications of Filling the Regulatory Void with Consumer Class Action Lawsuits,” Journal of Public Policy & Marketing, Spring 2015. Petty provides a history of the debate and litigation over use of the terms “natural” and “unprocessed” on food labels, beginning with U.S. Federal Trade Commission (FTC) actions against Sugar in The Raw® and Hawaiian Punch® in the 1970s. The article also details efforts by the U.S. Food and Drug Administration (FDA) and Department of Agriculture (USDA) to define “natural,” “synthetic,” “healthy” and “good source.” Petty highlights industry self-regulation, such as the processes established by the National Advertising Division of the Council of Better Business Bureaus, as a venue for…
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Franciscan Vineyards has filed an opposition against Home Box Office, Inc.’s (HBO’s) 2014 trademark application for “Three-Eyed Raven,” a beer collaboration between HBO and Ommegang Brewery based on the network’s “Game of Thrones” series. U.S. Trademark Application Serial No. 86309080 (notice of opposition filed May 11, 2015). Franciscan owns trademarks used by Ravenswood Winery, including “Ravens,” “Ravenswood” and a drawing of three black ravens forming a circle. The winery asserts that consumers are likely to be confused and challenged HBO’s intention to use the “Three-Eyed Raven,” alleging that the company had no intention to use the mark and, further, had committed fraud when it told the U.S. Patent and Trademark Office that it did. Ommegang began selling Three-Eyed Raven, its fifth collaboration with HBO, in April 2015. Issue 566
H.J. Heinz Co. has filed a lawsuit against Boulder Brands USA seeking to vacate and reverse a Trademark Trial and Appeal Board (TTAB) decision finding that the marks representing Heinz’s Weight Watchers Smart Ones® and Boulder’s Smart Balance® are sufficiently distinct, allowing both to exist. H.J. Heinz Co. v. Boulder Brands USA, Inc., No. 15-0681 (W.D. Penn., filed May 26, 2015). In its opposition to the Smart Balance® mark, Heinz asserted that the Smart Ones® mark was famous and would be diluted by Smart Balance®, but based on insufficient evidence TTAB disagreed in its March 2015 decision. In addition to the reversal, Heinz seeks a declaration of likelihood of confusion and a declaration of dilution under the Lanham Act and asks the court to direct the U.S. Patent and Trademark Office to invalidate the Smart Balance® mark. Issue 566
A group of consumers has filed a putative class action against Abbott Laboratories, Inc. alleging the company misrepresents its Similac Advance® Organic Infant Formulas because several of the ingredients are banned by federal law from use in food labeled “organic.” Marentette v. Abbott Labs., Inc., No. 15-2837 (E.D.N.Y., filed May 15, 2015). The plaintiffs challenge the products’ inclusion of beta carotene, biotin, taurine and lutein, among several other ingredients, and additionally assert that “at least one ingredient in these infant formulas is produced using genetically engineered materials—a practice forbidden in organic foods.” The complaint contends that Abbott knew that consumers would pay more for organic products and willfully misled them. The plaintiffs seek class certification, damages and an injunction for alleged violations of New York and California consumer-protection statutes, unjust enrichment and breach of warranty. Since the complaint was filed, Abbott has begun offering a version of Similac Advance® manufactured…
Amid ongoing recalls of Blue Bell Creameries’ ice cream products, a plaintiff has filed a lawsuit alleging that the company is liable for his severe listeriosis infection he says stems from the consumption of several varieties of contaminated products. Shockley v. Blue Bell Creameries Inc., No. 15-425 (W.D. Tex., filed May 19, 2015). The plaintiff alleges that Listeria monocytogenes infected his blood, then brain, resulting in permanent brain damage and leaving him near death. The complaint documents the recent Listeria outbreak subsequently linked to Blue Bell’s products by the Centers for Disease Control and Prevention. “Blue Bell utterly failed to design and implement sanitation and safety programs that would have prevented the sort of infestation and contamination that occurred at its facilities over a period of years,” the plaintiff asserts. He seeks compensatory, economic and punitive damages for strict product liability, negligence, misrepresentation and breach of warranties. Issue 566
StarKist Co. and a class of consumers have filed a proposed settlement agreement for $12 million in a case alleging that the company underfilled its cans of tuna. Hendricks v. StarKist Co., No. 13-0729 (N.D. Cal., motion filed May 14, 2015). Under the agreement, StarKist will pay $8 million in $25 cash increments and provide $4 million in $50 vouchers for StarKist-branded products. The agreement indicates that “tens of millions of purchasers” are members of the class but predicts that “a claim rate of more than 5% will be difficult to achieve.” Thus, the amounts of the settlement allow for 80,000 voucher claims and 120,000 cash claims. “This is an excellent result for class members compared to their likely recovery should they prevail at trial,” the agreement stipulates. Issue 566
The Federal Circuit has reversed and remanded a Trademark Trial and Appeal Board (TTAB) decision invalidating Snyder’s-Lance Inc.’s “Pretzel Crisp” trademark after Frito-Lay Inc. challenged the mark as generic. Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., No. 14-1517 (Fed. Cir., order entered May 15, 2015). TTAB’s decision found that “Pretzel Crisp” is a compound term and not a phrase, so it analyzed “pretzel” and “crisp” separately and found both words to be generic descriptors of Snyder-Lance’s pretzel-cracker product. The Federal Circuit disagreed with this method, holding that TTAB had conducted a “short-cut analysis” by not considering “Pretzel Crisp” as a whole phrase, because “the test for genericness is the same, regardless of whether the mark is a compound term or a phrase.” At the end of its decision, TTAB noted that “were we to analyze [‘Pretzel Crisp’] as a phrase, on this record, our conclusion would be the same, as…
The European Food Safety Authority (EFSA) has published its final caffeine risk assessment, concluding that “single doses of caffeine up to 200 mg” and “habitual caffeine consumption up to 400 mg per day does not give rise to safety concerns for non-pregnant adults.” Following a two-month consultation, the EFSA Panel on Dietetic Products, Nutrition and Allergies (NDA Panel) issued a scientific opinion considering “possible interactions” between caffeine and energy drink constituents, alcohol, p-synephrine, and physical exercise. The data evidently indicated no safety concerns when non-pregnant adults consume up to 200 mg of caffeine (i) less than 2 hours before intense physical exercise, (ii) in combination with energy drink ingredients such as taurine or d-glucurono-γ-lactone at typical concentrations, or (iii) in combination with alcohol at doses up to 0.65 g/kg body weight (bw). “The single doses of caffeine considered to be of no concern for adults (3mg/kg bw per day) may…
The Food Safety Authority of Ireland (FSAI) has issued a guidance note for industry discussing general legal requirements for use of the descriptors “artisan/artisanal,” “farmhouse,” “traditional” and “natural.” “Marketing terms are designed to resonate with consumers and are an essential part of business development in the food industry,” said Wayne Anderson, FSAI Director of Food Science and Standards. “Consumers need to be confident that the foods they purchase and consume are accurately and truthfully described on the label. Food businesses should also be confident that genuine descriptions of their food are not diluted in the marketplace by undefined marketing terms.” The labeling guidelines apply to products placed on the market after December 2016. See FSAI News Release, May 14, 2015. Issue 566
The U.S. Department of Agriculture’s (USDA’s) Grain Inspection, Packers and Stockyard Administration (GIPSA) is soliciting nominations for individuals to fill five pending vacancies on the USDA Grain Inspection Committee. The 15-member group representing grain producers, processors and exporters, among other stakeholders, meets twice a year to guide GIPSA in delivering its mandates under the U.S. Grain Standards Act. See Federal Register, May 26, 2015. Issue 566
