A plaintiff has alleged in Massachusetts federal court that Whole Foods Market mislabels its 365 Everyday Value Plain Greek Yogurt as containing 2 grams of sugar per serving despite Consumer Reports tests showing that a serving of the product contains an average of more than 11 grams of sugar. Knox v. Whole Foods Market, No. 14-13185 (U.S. Dist. Ct., D. Mass., filed Aug. 1, 2014). According to the complaint, the plaintiff learned about the alleged labeling discrepancy from Consumer Reports magazine, which tested six samples of 365 Everyday Value Plain Greek Yogurt and apparently found the average sugar content to be nearly six times the amount listed on the label. Whole Foods reportedly responded to the magazine’s findings by asserting that it relied on testing results from reputable third-party labs. The plaintiff alleges breach of warranty, unjust enrichment and negligence, and he seeks class certification, compensatory and punitive damages, attorney’s…
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A plaintiff has accused cereal company Organic Milling of mislabeling its Nutritious Living Hi-Lo brand cereals as “100% natural” despite allegedly containing synthetic and heavily processed ingredients and being produced with genetically modified (GM) crops. Mirto v. Organic Milling, No. BC553780 (Super. Ct. Cal., Los Angeles Cty., filed Aug. 5, 2014). The complaint alleges first that the use of GM crops in the cereal’s production precludes the company from using the phrase “100% natural” on its marketing materials, citing definitions from the World Health Organization and Environmental Protection Agency to argue that “GM crops are not ‘natural,’ and products made from these crops, including [Organic Milling’s products], are not ‘100% natural.’” The complaint further argues that Organic Milling’s use of canola oil in Hi-Lo cereal is not “100% natural” either because of the heavy processing required to produce the oil. The plaintiff also objects to the use of emulsifier soy…
According to New York Southern District U.S. Attorney Preet Bharara, a man who allegedly operated a wine counterfeiting laboratory from his California residence between 2004 and 2012 has been sentenced to 10 years in prison. Rudy Kurniawan apparently became a prominent and prolific U.S. dealer of rare and expensive wine that was actually lower-priced wine blended to mimic the taste and character of far better wines. He allegedly purchased empty bottles of rare and expensive wines—some of them from New York City restaurants—poured his mixtures into them, sealed the bottles, and then attached counterfeit labels that he created. The fakes were then sold to wealthy wine collectors through auctions and by direct sales. According to a news source, Kurniawan was eventually caught through misspellings and other packaging errors, including early 20th century dates on some bottles that pre-dated their actual production. Kurniawan also allegedly fraudulently obtained a $3-million loan from a…
A federal court in California has granted in part the motion to dismiss filed by Diamond Foods, Inc. in a putative class action alleging that the company misleads consumers by claiming that its Reduced Fat Sea Salt Chips are “40% reduced fat potato chips” and its Backyard Barbecue Chips are “All Natural,” as well as making false and deceptive statements in the company’s “promotional materials” and on its “website.” Hall v. Diamond Foods, Inc., No. 14-2148 (U.S. Dist. Ct., N.D. Cal., order entered July 31, 2014). An amended complaint, if any, must be filed by August 15, 2014, and the case management conference will be held on October 31. The court dismissed the reduced fat claims finding them insufficiently pleaded because it was unclear whether the plaintiff read only the statement on the front of the bag, in which case he “would lack standing to argue the statements on the…
A federal court in Washington has determined that the U.S. Environmental Protection Agency (EPA) did not violate the Freedom of Information Act (FOIA) in responding to requests for information relating to its investigation of nitrate levels in groundwater and residential drinking water wells in the Lower Yakima Valley. Cmty. Ass’n for Restoration of the Env’t, Inc. v. EPA, No. 13-3067 (E.D. Wash., order entered August 6, 2014). Because the environmental organization (CARE), which is a plaintiff in Resource Conservation and Recovery Act (RCRA) citizen suits against the dairies whose documents are part of the FOIA requests, also alleged Administrative Procedure Act (APA) violations against EPA, the court granted its request to allow the parties to brief the merits of CARE’s APA claim. Meanwhile, the dairies subject to the RCRA actions have filed a lawsuit against EPA, seeking an order prohibiting EPA from disclosing to CARE or other members of the…
The U.K. Advertising Standards Authority (ASA) has dismissed complaints challenging print and TV advertisements that tout Tesco-brand milk as fairly priced and responsibly sourced. In particular, the complaints alleged that (i) “the image of cows in an open field did not accurately represent how the milk was produced or the conditions in which the cows lived” and (ii) only a small proportion of Tesco’s milk was sourced through the Tesco Sustainable Dairy Group (TSDG). According to ASA, Tesco countered that all of its core milk suppliers must meet industry Red Tractor standards as well as Tesco’s own Livestock Code of Practice, which focuses on food safety, environmental indicators and “welfare outcome measures such as lameness, mastitis, fertility, and animal health.” The retailer also reiterated that core farmers with TSDG “supplied approximately 80% of Tesco’s total milk requirements over the course of the year,” while seasonal farmers provided additional milk during…
The European Food Safety Authority (EFSA) has revised the rules governing “Declarations of Interest” as part of its ongoing effort to increase openness and transparency. Effective September 30, 2014, the updated rules clarify how the agency uses such declarations “to prevent the occurrence of conflicts of interest among the members of its governance bodies and its staff,” including those serving on EFSA’s Management Board, Advisory Forum, Scientific Committee, Scientific Panels, and Working Groups, as well as external experts, observers, tenderers, and grant beneficiary participants. Among other things, the new rules specify that a “food safety organization” “must receive more than 50% of its funding from public sources.” They also provide “a precise definition of what is meant by family members, namely spouses, registered partners and dependent descendants,” in addition to making annual Declarations of Interest “obligatory for all staff members.” “EFSA is committed to reviewing its policies and procedures to…
The European Food Safety Authority (EFSA) has rejected the evidence submitted by France “in support of its request to prohibit the cultivation of genetically modified [GM] maize MON 810 in the EU.” As requested by the European Commission, EFSA reviewed the French report but determined that none of the cited studies “would invalidate the previous risk assessment conclusions and risk management recommendations made by the EFSA GMO Panel.” Noting that many of the issues in question were previously addressed by the GMO Panel, EFSA also considered the concerns raised by French authorities “in light of the most recent and relevant scientific data.” Based on these findings, the agency ultimately found “no specific scientific evidence, in terms of risk to human and animal health or the environment, that would support the adoption of an emergency measure on the cultivation of maize MON 810 under Article 34 of Regulation (EC) 1829/2003.” …
The U.S. Food and Drug Administration (FDA) seeks public comments on the estimated time burdens relating to the extension of an existing information collection pertaining to the recalls of all FDA-regulated products (including food, animal feed, drugs, animal drugs, medical devices, cosmetics, biological products intended for human use, and tobacco). The estimates are based on the total number of recalls from 2011 to 2013 (11,403) averaged to 3,801 per year and involve the time burdens of complying with the voluntary reporting requirements of the agency’s recall regulations. Comments must be submitted by October 3, 2014. See Federal Register, August 4, 2014. Issue 533
The U.S. Food and Drug Administration (FDA) this week reminded consumers that “gluten-free” “now means what it says” after a final rule outlining the voluntary labeling standards took effect on August 5, 2014. According to FDA, the new standards stipulate that foods labeled “gluten-free,” “without gluten” or “no gluten” can contain gluten in amounts less than 20 parts per million (ppm) only, “the lowest level that can be consistently detected in foods using valid scientific methods.” “This level is consistent with those set by other countries and international bodies that set food safety standards,” explained the agency, which gave manufacturers one year to bring products into compliance. Additional details about the final rule appear in Issue 492 of this Update. See FDA Consumer Update, August 5, 2014. Issue 533
