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

Four consumers have filed a putative class action alleging that BA Sports Nutrition's BodyArmor SuperDrink sports drinks are "unlawfully fortified junk food." Silver v. BA Sports Nutrition LLC, No. 20-0633 (N.D. Cal., filed January 28, 2020). "BodyArmor does not provide 'superior' or 'better' hydration to Plaintiffs and other consumers than other beverages, nor are the Plaintiffs or the general public hydration deficient and/or in need of its characteristics to replenish them from dehydration," the complaint asserts. The plaintiffs argue that BodyArmor is a sugar-sweetened beverage "that scientifically links to serious medical conditions, including obesity, type 2 diabetes, and cardiovascular disease, when regularly consumed." They allege that they "would not have purchased BodyArmor, purchased as much of it, or paid as much for it, had they understood that consumption does not provide them with a drink comprised of natural ingredients and/or that was more, natural, better for them than other drinks."…

A California federal court has refused to approve a $6.5 million settlement between Tri-Union Seafoods and commercial food preparers. In re Packaged Seafood Prods. Antitrust Litig., No. 15-2670 (S.D. Cal., entered January 17, 2020). The court found that the proposed $6.5 million, half of which would go to attorney's fees and $2 million to costs and expenses, "would provide at most $1.5 million" to the class. The gross settlement amount "is approximately one-third of the damages," the court noted, and "a rough calculation suggests that [the class] will collectively receive approximately 6.85% of the damages they attribute to [the defendant]."

Following a vote in the Virginia House Agriculture Subcommittee, the state's House of Delegates will reportedly consider a bill that would limit the use of "milk" to describe the "lacteal secretion" from specific animals, including cows, sheep, goats, yaks, reindeer, water buffalo, horses and donkeys. During the subcommittee discussion, one delegate reportedly suggested adding "dairy" instead of removing "milk" because the term and associated words are used regularly for products that are not milk substitutes, such as "milk of magnesia" or "body butter." If enacted, the bill would not take effect until 11 states have passed similar legislation.

A Missouri state senator has introduced a bill that would deem product containers not misleading for including some slack fill if they meet one of fifteen criteria. The criteria that would allow a container to be "filled to less than its capacity" include (i) for protection of the contents; (ii) compliance with reasonable industry standards; (iii) settling of the contents during handling; (iv) a specific function of a package, such as where the packaging plays a role in the preparation or consumption of the product; (v) inability to increase the level of fill or reduce the size of the package; or (vi) the provision of significant value independent of the packaging's function of holding the product, such as gift packaging or a container provided for reuse.

A U.S. federal court entered a consent decree of permanent injunction prohibiting Home Style Foods, Inc., and its owner and quality manager from selling food products until the company complies with federal regulations. U.S. Food and Drug Administration (FDA) inspections reportedly found Listeria monocytogenes in the company's food preparation area and documented violations of seafood safety regulations. “After repeated food safety violations, the FDA worked with the U.S. Department of Justice to obtain this injunction in order to prevent potentially contaminated food from reaching consumers. The company failed to take the appropriate corrective actions resulting in this action,” an FDA official said in a press release. “When a company fails to follow the law, the government will take action to protect the food supply."

Labeling class action filings focused on purportedly misleading ingredient labels tend to come in waves, and 2019 saw a surfeit of lawsuits targeting vanilla, white chocolate and malic acid. Several plaintiffs alleged that they were misled by products listed as vanilla-flavored because, they argued, they believed they were buying products flavored with vanilla beans rather than artificial vanilla. The allegations reached yogurt, cream soda, ice cream, coconut milk and almondmilk, among other products. D-l malic acid, a synthetic flavoring, was frequently alleged to be masquerading on ingredient lists as malic acid, a naturally occurring compound. Many plaintiffs argued that they purchased products—including Brookside chocolates, Laffy Taffy, orange juice and SweeTarts—believing them to be "natural" and free of synthetic ingredients. Plaintiffs continue to file putative class actions alleging that they were misled by labels marketing products as containing "real cocoa" rather than "cocoa processed with alkali," and Oreos and Cocoa Pebbles…

Several 2019 putative class actions targeted food products that purportedly misled consumers because they were marketed as "healthy" despite containing ingredients with debated health benefits. Coconut and coconut-derived products were a popular target for plaintiffs, who asserted that they were misled about the benefits associated with cooking with coconut oil or drinking coconut milk because coconut products frequently carry high levels of saturated fat. The same plaintiff sued Hain Celestial Group Inc. and Danone U.S. Inc., though the court found that Danone's marketing touting So Delicious Coconut Milk's "Maximum Calcium Absorption" benefit was "a permissible structure/function claim." "Healthy" confusion also extended to TGI Friday's Inc. potato skins—the "labeling deceives consumers into believing that they are receiving a healthier snack" because the potato skin is high in several nutrients, the plaintiffs allege—and sprouted grains, which Food for Life Baking Co. Inc. apparently marketed as nutritionally superior to comparable cereal products. Kellogg Sales…

Following the passage of the 2018 Farm Bill, which legalized the cultivation of hemp, cannabidiol (CBD) became the star ingredient of 2019, featured on its own as an oil or in food and beverages. The U.S. Food and Drug Administration (FDA) struggled to keep up with the hype; while CBD stayed in legal limbo, U.S. lawmakers and other public officials urged the agency to take action and create a legal framework for a burgeoning industry capitalizing on the popularity of CBD and its purported calming and healing effects. Several companies went too far in their marketing, however, according to the U.S. Food and Drug Administration's and Federal Trade Commission's warning letters focused on the claimed benefits of the product. The U.S. Department of Agriculture issued its interim final rule on hemp production in October, but the announcement drew hundreds of comments urging the agency to make pragmatic adjustments. Sens. Ron…

Consumers and regulators have long expressed concerns about the safety of plastic and other materials in packaging for food, and in 2019, concern turned towards perfluorinated compounds (PFAS). Rep. Debbie Dingell (D-Mich.) introduced legislation in May that would ban PFAS in food containers and cookware, and a U.S. Food and Drug Administration (FDA) presentation was revealed that reportedly disclosed that agency researchers found high levels of PFAS in meat, fish, leafy greens and chocolate cake. In its response to headlines about the presentation, FDA stated, "Overall, our findings did not detect PFAS in the vast majority of the foods tested. … In addition, based on the best available current science, the FDA does not have any indication that these substances are a human health concern, in other words a food safety risk in human food, at the levels found in this limited sampling. These data give our scientists a benchmark…

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