A New York consumer has filed a putative class action against juice maker Suja Life, LLC, alleging the company deceptively labeled its juice blends as “Cold-Pressed.” Lumbra v. Suja Life, LLC, No. 22-893 (N.D.N.Y., filed August 28, 2022). The plaintiff alleges that the packaging of Suja’s “Cold-Pressed” juices led her to believe they were not processed after being extracted. She asserts in the complaint that typically, juices that are not subjected to treatment after they’re extracted are labeled as “Cold-Pressed,” while juices that are treated usually prominently disclose treatment. She alleges that Suja failed to prominently disclose to consumers that after its juices are cold-pressed, they are subjected to a treatment known as high-pressure processing. “By describing the Product as 'Cold-Pressed' without any prominent, clear disclaimers of other processing steps, consumers expect it will be fresh,” the plaintiff asserts. “However, the Product is not fresh and has more in common with…
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The U.S. Trademark Trial and Appeal Board (TTAB) has denied energy drink and dietary supplements manufacturer JHO Intellectual Property Holdings LLC’s bid to register the mark PURPLE RAIN in connection with its products. NPG Records, LLC v. JHO Intellectual Property Holdings LLC, No. 91269739 (T.T.A.B., entered August 23, 2022). JHO sought to register the mark for its energy drinks, energy bars and a range of dietary and nutritional supplement products. NPG Records, LLC, which claims to own registered and common law rights in the trademark PURPLE RAIN, and Paisley Park, which owns the rights in the name, image and likeness of Prince Rogers Nelson, the musical artist commonly known as Prince, opposed the bid. Paisley Park said the mark should be denied in part because of the false suggestion of a connection with Prince. In a recent precedential ruling, TTAB agreed, granting Paisley Park’s motion for partial summary judgment. "We…
The European Food Safety Authority has issued several opinions, in keeping with its Farm to Fork Strategy, that provide guidance on compliance when transporting animals to food processing facilities and slaughterhouses. The opinions identify possible hazards to animal welfare in transport and provide information on combating disease or other disorders that would threaten animal welfare. Types of animals covered by the opinions include cattle; pigs; domestic birds and rabbits; sheep and goats; and horses and donkeys.
Shook Partner Connor Sears has authored "Food, Drug, Cosmetic Cos. Should Expect More Additive Suits" for Law360. In the article, Sears explores the recent spate of litigation alleging that additives approved for use by the U.S. Food and Drug Administration (FDA) are causing harm to consumers because the same additives are not approved for use in certain other countries. Challenged additives are used in a wide variety of foods, including fish, cereal, dairy, meat, candy and more. "Considering the wide scope of products that may face future lawsuits, manufacturers and distributors may be curious about how courts have treated similar lawsuits," Sears notes. He suggests that courts may approach additives lawsuits similarly to how lawsuits alleging harm from partially hydrogenated oils (PHOs) were decided between 2015, when FDA determined PHOs to be unsafe for food, and 2018, when a ban on their use took effect. Read the full article >>
A Massachusetts federal court has granted a motion to dismiss a request for injunctive relief but allowed to continue other claims alleging that Gorton’s Inc. misleads consumers by marketing its tilapia products as “sustainably sourced.” Spindel v. Gorton’s Inc., No. 22-10599 (D. Mass., entered August 24, 2022). The court noted that in a hearing, Gorton’s acknowledged “that some of its tilapia comes from fish farms in China but contended that it follows industry best practices in its sourcing from China.” “To the extent plaintiffs are casting a wider net in arguing that only tilapia raised in the wild are sustainable, they will come up empty,” the court found. “However, Plaintiffs do assert a plausible (albeit hotly disputed) claim that Gorton’s tilapia are sourced, in part, from unsustainable Chinese fish farms with ‘environmentally destructive and inhumane’ practices.” Accordingly, the court denied the motion to dismiss these claims.
A notice in the Official Journal of the European Union has announced a tightening of restrictions on the allowable amount of ethylene oxide, “an important chemical substance having multiple uses, including the use as a sterilising agent and as a raw material in the manufacture of various products,” that is “a substance of concern classified as carcinogenic, mutagenic and toxic for reproduction.” The current regulation dictates that ethylene oxide may not be used for sterilizing purposes in food additives, but it did not set a quantified limit on the allowable amount for all food additives. Under the amended regulation, which is set to take effect in September 2022, ethylene oxide will not be authorized for food additives, and a residue of the substance above 0.1 mg/kg will be in violation of the rule.
A group of California consumers and an animal welfare nonprofit have filed a putative class action against Whole Foods, alleging the grocer misled consumers about whether its beef products were truly antibiotic-free. Safari v. Whole Foods Market, Inc., No. 22-01562 (C.D. Cal., filed Aug. 23, 2022). The plaintiffs alleged that Whole Foods’ “No Antibiotics, Ever” slogan and marketing used to tout its beef products as antibiotic-free misrepresented what consumers were actually getting in their beef purchases. “The reality is starkly different: Whole Foods sold Beef Products without taking effective measures to ensure that they came from cattle raised without antibiotics,” the plaintiffs asserted, pointing to independent testing which they say shows evidence of antibiotic residue in Whole Foods’ beef products. The plaintiffs noted in the complaint that consumer demand has risen in recent years for antibiotic-free meat. Consumers are also increasingly willing to pay a premium for it, the plaintiffs asserted,…
The U.S. Department of Agriculture has released its final rule amending its labeling provisions requiring dual labeling for meat or poultry products, which will take effect Oct. 17, 2022. The proposed rule sought to amend the Food Safety and Inspection Service’s (FSIS) labeling regulations to remove provisions that require packages of meat or poultry products that contain at least one pound or pint, but less than four pounds or one gallon, to express the net weight or net content in two different units of measurement on the product label. FSIS revisited the regulations in response to a petition submitted by a small meat processing establishment. After conducting a review of the regulatory provisions and comments on the proposed rule, FSIS determined the provisions were unnecessary. The final rule adopts the requirements of the proposed rule, with some non-substantive changes to the proposed regulatory language. Under the final rule, all FSIS…
A Florida consumer has sued cheesemaker Lactalis American Group, Inc., alleging the company misrepresented the authenticity of its President-branded feta cheese. Gallagher v. Lactalis American Group, Inc., No. 22-00614 (W.D.N.Y., filed Aug. 14, 2022). The plaintiff alleges that Lactalis misrepresented its feta cheese as made in Europe under the President brand, when it is made in the United States. In the complaint, the plaintiff highlighted the company's feta cheese packaging, which includes language that the brand is “Europe’s Leading Cheese Expert," a gold olive branch wreath and the word “feta” “stylized in ancient-Greek font.” The plaintiff asserts that the labeling "gives consumers the impression the Product was made in Greece, or at the very least in another European country,” “Consumers are faced with increasing commercialization of products and seek brands that are genuine – feta cheese from Greece, sake from Japan, and tomatoes from Italy," the plaintiff asserts in the complaint.…
An Illinois federal court has granted Kraft Heinz Foods Co.'s motion to dismiss a lawsuit alleging the labeling noting the inclusion of mozzarella cheese and tomato sauce in Bagel Bites is misleading. Jackson v. Kraft Heinz Foods Co., No. 21-5219 (N.D. Ill., E. Div., entered August 3, 2022). "Central to all of Plaintiff s claims is the notion that the Product's label misleads consumers by representing that the Product contains ‘mozzarella cheese. REAL cheese,' and 'tomato sauce,' but omitting that it contains additives," the court found. "However, a product that says it contains mozzarella cheese and tomato sauce when the Product does, in fact, contain mozzarella cheese and tomato sauce is not misleading to the reasonable consumer simply because its label does not list its additives." The court also noted that the standard of a "reasonable consumer" can vary according to the product at issue. "[W]hile Plaintiff contends reasonable consumers do…
