A California federal court has dismissed without leave to amend claims that the makers of 5-Hour Energy—Innovation Ventures LLC, Living Essentials LLC, Manoj Bhargava, and Bio Clinical Development Inc.—falsely advertised their product as boosting its users’ energy levels with B-vitamins and amino acids rather than caffeine. In re: 5-Hour Energy Mktg. & Sales Practices Litig., No. 13-2438 (C.D. Cal., order entered January 22, 2015). The plaintiffs argued that the 5-Hour Energy makers downplayed the caffeine content in favor of attributing the product’s energy source to vitamins and other ingredients, and they included descriptions of five commercials containing the allegedly misleading statements. The court found that they failed to show what statements actually misled them, and it was also unpersuaded by the argument that the plaintiffs were exposed to a common message and thus did not need to specify which statements they relied upon to their detriment, so it dismissed without…
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A Minnesota federal court has granted in part and denied in part a motion to dismiss in a lawsuit alleging that Hormel Food Corp. stole trade secrets and breached contractual agreements in its joint venture to develop new methods of cooking bacon. Unitherm Food Sys. Inc. v. Hormel Food Corp., No. 14-4034 (D. Minn., order entered January 27, 2015). Unitherm alleged that it created the first viable method for pre-cooking sliced bacon—a process using spiral ovens and super-heated steam—and agreed to develop a commercially viable product with Hormel in June 2007. Unitherm asserted that Hormel disclosed its process, which Unitherm had not yet patented, to a rival company in violation of confidentiality agreements, which constituted an appropriation of trade secrets. The court disagreed, finding that Unitherm’s July 2009 patent application precluded its claim of trade secrets because patented processes cannot, by necessity, be trade secrets due to the disclosure of…
A Missouri federal court has dismissed a lawsuit challenging the “all natural” labels of Cape Cod Chips because the plaintiff failed to provide a suitable definition of “natural.” Kelly v. Cape Cod Potato Chip Co., No. 14-119 (W.D. Mo., order entered January 27, 2015). The plaintiff alleged that 16 varieties of Cape Cod Chips were advertised as “all natural” and made without preservatives despite containing 13 artificial and synthetic ingredients. The court reviewed the definitions of “natural” submitted by the plaintiff and found them each lacking. It first dismissed the dictionary definition, “existing or produced by nature: not artificial,” as “not plausible because the Chips are processed foods, which of course do not exist or occur in nature.” The definition of “natural” found in an informal advisory opinion from the U.S. Food and Drug Administration (FDA) was not binding, the court found, because the agency “specifically declined to adopt any…
The D.C. Circuit Court of Appeals has affirmed a Federal Trade Commission (FTC) order that found POM Wonderful’s advertising to be misleading for claiming that its products treat or reduce the risk of several medical conditions, including prostate cancer and heart disease. POM Wonderful, LLC v. FTC, No. 13-1060 (D.C. Cir., order entered January 30, 2015). In 2013, FTC ordered POM to stop making misleading health claims about its product, and POM challenged the ruling. POM argued that its ads were protected by the First Amendment, but the court dismissed this argument, finding that deceptive and misleading ads have no First Amendment protection. The juice company also asserted that it had clinical studies to support its health claims. The circuit court affirmed FTC’s finding that POM had cherry-picked its results when presenting them to the public, which invalidated them as support for the claims. The court agreed with POM, however, that…
The U.S. Department of Agriculture’s Food Safety and Inspection Service, Food and Drug Administration, and Centers for Disease Control and Prevention (CDC) are hosting a February 24, 2015, public meeting in Washington, D.C., to update stakeholders and solicit input about the agencies’ collaborative initiatives to improve foodborne illness source attribution. The discussion will target the agencies’ effort to develop a single approach to creating harmonized foodborne illness source attribution estimates from outbreak data for Salmonella, E. coli O157, Listeria, and Campylobacter. Those interested in attending the meeting should register online by February 17. See Federal Register, January 28, 2015. Issue 553
Rep. Rosa DeLauro (D-Conn.) and Sen. Richard Durbin (D-Ill.) this week introduced legislation (Safe Food Act of 2015) that would consolidate food safety duties currently managed by 15 different agencies to the oversight of a single food safety authority. “The fragmented nature of our food safety system has left us more vulnerable to the risk of foodborne illness, it has too often forced citizens to go it alone in the case of outbreak,” Durbin said. Among other things, the proposal would transfer responsibility for inspections, enforcement and labeling to the new Food Safety Administration. DeLauro and Durbin introduced similar legislation in 1999, 2004, 2005 and 2007. See Press Release of Rep. Rosa DeLauro and Sen. Richard Durbin, January 28, 2015. Issue 553
While laws mandating disclosure of the presence of genetically modified organisms (GMOs) on food labels are debated in statehouses, independent organizations such as the Non-GMO Project are offering certification for non-GMO products. NPR tracked how a food company earns the “Verified” label from the Non-GMO Project, beginning with an Iowa-based company called FoodChain ID that guides companies through the process of certification. FoodChain ID first identifies all of the ingredients in the product—including those not actually listed on the label—such as “all the processing aids, the carriers and all the inputs that go into a product.” It then determines the source of each ingredient and input and individually verifies its seclusion from GMOs. “If there’s honey in cookies, for example,” NPR notes, “the company will have to show that the bees that make the honey aren’t feeding near genetically modified corn. When there’s even the smallest risk that an ingredient…
The Robert Wood Johnson Foundation’s (RWJF) Healthy Eating Research initiative has published a January 2015 report seeking to close alleged loopholes in industry efforts to regulate the marketing of foods and beverages to children. Focusing on children younger than age 14, Recommendations for Responsible Food Marketing to Children notes that although new advertising standards have led to improved nutritional profiles for many products, these guidelines often exclude product packaging, in-store promotions, toy incentives, and other strategies from their definitions of child-directed marketing. To this end, the report offers model definitions that aim to cover diverse brand architectures as well as new media and venues for marketing activities. The authors recommend that companies restrict their advertising to products that meet nutritional criteria when (i) “children constitute 25 percent or more of the audience (e.g., viewers, listeners, readers, participants, or visitors) at the time of ad placement based on projected attendance,” (ii) “children are…
District attorneys in California’s Yolo, Sacramento and San Joaquin counties have reportedly filed a lawsuit in state court alleging that R.F. Palmer Co. advertised its “Too Tall Bunny” product in violation of the unfair business practices, false advertising and unfair competition provisions of the California Business and Professions Code. The chocolatier apparently packaged the chocolate bunny in a box similar in size to its competition but asserted that the bunny was “Too Tall” and displayed the ears in plastic popping out of the top of the box. The bunny sat on a cardboard insert at the bottom of the box, and without that insert, the bunny was the same size as other similar products, the prosecutors argued. The district attorneys reportedly reached an agreement with the Pennsylvania-based chocolatier bore filing the case to ensure compliance; the court issued a final judgment the same day—a civil penalty of $2,500 for each…
A Pennsylvania federal court has denied H.J. Heinz Co.’s motion for summary judgment in a lawsuit alleging that the company stole the idea for the “Dip & Squeeze” ketchup packet. Wawrzynski v. H.J. Heinz Co., No. 11-1098 (W.D. Penn., order entered January 7, 2015). The plaintiff asserts that he met with the company in 2008 and presented the idea for the dual-opening packet, but they never reached a deal; Heinz later released its Dip & Squeeze packet, which the plaintiff argues was too similar to his concept. The court noted that although Heinz presented evidence showing that it was actively developing a dual-function condiment container before meeting with the plaintiff, the plaintiff had also shown that Heinz had been unsuccessful in creating or marketing a feasible container. “Given the evidence presented by both parties to this lawsuit,” the court concluded, “whether either or both of Plaintiff’s ideas were novel and concrete…
