Yale University’s Rudd Center for Food Policy and Obesity has issued a report claiming that cereal companies “have improved the nutritional quality of most cereals marketed directly to children, but they have also increased advertising to children for many of their least nutritious products.” Titled Cereal F.A.C.T.S. Food Advertising to Children and Teens Score, the report analyzes the nutritional quality of more than 100 brands and nearly 300 individual varieties of cereal marketed to children, families and adults while examining industry advertising on TV, the Internet and social media sites. According to the report, while nutritional quality improved for 22 cereal brands advertised to children in both 2008 and 2011, total media spending to promote child-targeted cereals increased by 34 percent during that same time period. Among its findings, the report concludes that (i) “Children viewed fewer TV ads for 7 of 14 child-targeted brands, including Corn Pops and Honeycomb”; (ii)…
Posts By Shook, Hardy & Bacon L.L.P.
Shook Partner Sean Wajert has authored an article on the failure of a duty-to-warn claim in a case involving a caffeinated alcoholic beverage and a fatal motorcycle accident. Titled “No Duty to Warn for ‘Nonconventional’ Alcohol Beverages,” the article appeared in the June 27, 2012, issue of Law360. Wajert discusses the court’s dismissal of such claims in Cook v. MillerCoors LLC, and explains why “the court was reluctant to make an exception to the rule” that “the dangers inherent in alcohol consumption are well-known to the public.” With “hundreds of alcohol-containing products that are not ‘conventional’ in one way or another, by taste, ingredients, color, manufacturing process, advertising . . . To shift responsibility from the person who over-consumes one of these and then drives impaired is to send the absolutely wrong policy message.” To read the article, please click here.
According to a news source, Whole Foods Market Inc. is seeking to stop its deposition in consumer fraud litigation filed against Skinny Girl Cocktails LLC, arguing that it does not own or operate Whole Foods retail stores nor does it “decide which suppliers, food brokers or distributors are to be used by Whole Foods Market retail locations.” Greene v. Skinny Girl Cocktails LLC, 12-550 (W.D. Tex., motion to quash filed June 22, 2012). A number of putative class actions alleging that the defendants falsely market margaritas as “all natural” were filed in district courts around the country after Whole Foods stores pulled the product from their shelves upon learning that it contains sodium benzoate as a preservative. An effort to have the actions consolidated before a multidistrict litigation court failed; additional details about that ruling appear in Issue 422 of this Update. See Law360, June 25, 2012.
Kraft Foods and its subsidiary have asked a federal court in California to dismiss claims that they mislead consumers by labeling Wheat Thins® crackers as “100% whole grain,” contending that the theory of the case does not meet the plausibility pleading standard and the state law-based claims are preempted under federal law. Garcia v. Nabisco, Inc., No. 12-4272 (C.D. Cal., motion filed June 22, 2012). According to the defendants’ motion, this is nothing but a “lawyer-concocted class action lawsuit” and reasonable consumers understand that the “100% whole grain” representation “merely indicates that the only type of grain used in the crackers is ‘whole grain’ as opposed to non-whole grains used in enriched flours,” not that the crackers contain nothing but whole grains. “Common sense dictates that processed crackers are not made with only a stalk of whole grain and that they are made with the help of processing agents, baking…
The Natural Resources Defense Council (NRDC) has filed a lawsuit against the Food and Drug Administration (FDA) and the Center for Veterinary Medicine (CVM) alleging that they have failed, in response to a Freedom of Information Act (FOIA) request, to produce documents pertaining to risk assessments for antibiotics used in livestock production. NRDC v. FDA, No. 12-4757 (S.D.N.Y., filed June 18, 2012). Seeking a declaration that the defendants violated FOIA and an order that they disclose “all responsive, non-exempt records to plaintiff within fifteen days,” NRDC refers to industry guidance that FDA issued in 2003 on “assessing the safety of antimicrobial new animal drugs with regard to the microbiological effects on bacteria of human health concern” and actions the defendants have taken since then relying on the guidance. After FDA acknowledged in a December 2011 Federal Register notice that it had begun “to look at the safety of some .…
The Federal Circuit Court of Appeals, in a divided ruling, has determined that Wrigley’s 2000 patent for menthol chewing gum was invalid because prior patents made Wrigley’s claimed invention obvious; thus, the court determined that Cadbury did not infringe Wrigley’s patent when it reformulated its chewing gum to include the compound claimed in Wrigley’s patent. Wm. Wrigley Jr. Co. v. Cadbury Adams USA LLC, Nos. 2011-1140, -1150 (Fed. Cir., decided June 22, 2012). The court also determined that Wrigley did not infringe Cadbury’s 1989 patent for menthol chewing gum because the compound used by Wrigley is not the equivalent of the compound described in Cadbury’s patent. A dissenting judge argued that the majority applied the incorrect legal standard and improperly shifted the burden of proving the validity of Wrigley’s patent to Wrigley and erred in how it assessed the evidence of commercial success and copying by others in its determination…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) is seeking public comments on its proposal to establish a Proposition 65 maximum allowable dose level for sulfur dioxide of 220 micrograms per day. Comments should be submitted by August 20, 2012. Requests for a public hearing must be made no later than August 6. Sulfur dioxide preserves the color and flavor of dried, light-colored fruits, such as golden raisins and dried apricots, peaches, apples, pineapple, papaya, and mango, and acts as an antimicrobial agent. According to OEHHA’s draft interpretive guideline, a warning for exposure to sulfur dioxide from consumption of dried fruit is not required under Proposition 65 because reasonably anticipated rates of exposure “will be below the proposed Maximum Allowable Dose Level.” Sulfur dioxide was added to the list of chemicals known to the state to cause reproductive toxicity in July 2011; the particular type of toxicity found was…
After two years of deliberation, the Food Safety and Standards Authority of India (FSSAI) has reportedly agreed to issue draft regulations that would require energy drink manufacturers to rebrand their products as “caffeinated beverages.” Based on the findings of an expert panel convened to study caffeine and energy drink consumption in India, the draft regulations would apparently set an upper caffeine limit of 320 milligrams per liter or 320 parts per million (ppm) in caffeinated beverages, as well as prohibit any nutritive claims and the use of the word “energy” as a descriptor. FSSAI has also proposed that all energy drinks bear safety labels warning that such products (i) are “not recommended for children, pregnant or lactating women, persons sensitive to caffeine and sportspersons,” (ii) should not be consumed in excess of two cans per day, and (iii) contain a “high caffeine content.” “We had been considering the standards for…
The European Commission has apparently sent “a reasoned opinion” to 10 member states “that have failed to correctly implement Directive 1994/74EC which introduces a ban on the use of un-enriched cages for laying hens,” according to a June 21, 2012, EU press release. The Commission has given Belgium, Greece, Spain, France, Italy, Cyprus, Hungary, the Netherlands, Poland, and Portugal two months to ensure compliance with the directive before referral to the EU Court of Justice. These countries apparently still permit the use of “un-enriched cages” for laying hens “despite the ban which came into force in January 2012 for which they have had 12 years to prepare.” Under the directive, “all laying hens must be kept in ‘enriched cages’ with extra space to nest, scratch and roost,” or in systems with at least 750 square centimeters of cage area as well as “a nest-box, litter, perches and claw-shortening devices, allowing…
The Council of the European Union has issued a “One Health” perspective document recognizing that antimicrobial resistance (AMR) “is accelerated by excessive and inappropriate use of antimicrobial agents” and asking member states to “develop and implement national strategies or action plans for countering AMR.” According to the perspective document, which underlined the need for “an active holistic approach” to combating AMR, “some practices in human and in animal healthcare including the possible incentives deriving from the prescription and subsequent sale of antimicrobial agents may lead to inappropriate use and overuse of antimicrobial agents.” In particular, the Council has advocated restrictions on both the human and veterinary use of critically important microbials (CIAs) and newly developed microbials “with the aim in the future to reserve CIAs as much as possible for human use.” To this end, the Council has requested that member states curb the prophylactic use of all antimicrobials while…
