A California resident has filed consumer fraud claims on behalf of a putative statewide class against a company that makes fruit juices with “No Sugar Added” statements on the product labels and without a statement that the juice is not a “low calorie” or “calorie reduced” product allegedly in violation of federal regulatory requirements. Cuzakis v. Hansen Beverage Co., No. BC513620 (Cal. Super. Ct., Los Angeles Cty., filed June 27, 2013). According to the complaint, the juices are made from fruit juice concentrate and thus cannot be labeled “No Sugar Added,” and with 120 calories per reference serving greater than 30 grams (“about as much as a conventional soft drink”) must include a disclosure that they are not “low calorie.” While the plaintiff alleges that he is a diabetic and must purchase products low in sugar, he does not seek damages for personal injury; rather, he claims he would not…
Category Archives Issue 490
Trade organizations representing the interests of cattle and pork producers and meat processors in Canada and the United States have filed a lawsuit against the U.S. Department of Agriculture (USDA), challenging country-of-origin (COOL) labeling regulations that took effect May 23, 2013. Am. Meat Inst. v. USDA, No. 13-1033 (D.D.C., filed July 8, 2013). They seek declaratory and injunctive relief, an order vacating the final rule, attorney’s fees, and costs. Explaining that meat producers and processors in the United States, Canada and Mexico have for years freely “commingled” livestock born, raised and processed across their borders, the plaintiffs allege that new requirements forcing them to “list separately, in sequence, the specific country where the animal was ‘born,’ the country where it was ‘raised,’ and the country where it was ‘slaughtered,’” will impose significant costs and entail extensive detail and paperwork for no health or safety reasons. They allege that the COOL regulations…
A federal court in California has dismissed in part and granted in part allegations in a second amended, putative class complaint filed against three food and beverage companies for alleged violations of state consumer fraud laws in the labeling claims on a plethora of products including chewing gum, juices, cookies, crackers, granola, stuffing, and cheese. Ivie v. Kraft Foods Global, Inc., No. 12-2554 (N.D. Cal., San Jose Div., order entered June 28, 2013). Information about a previous ruling in the case appears in Issue 473 of this Update. The court dismissed with prejudice (i) the plaintiff’s claim that a “natural flavors” label on Crystal Light® is misleading because the product contains artificial flavors; the court found that the two specific ingredients alleged to be “artificial” flavors are artificial ingredients and nothing in the Food and Drug Administration regulations suggests that potassium citrate and sodium citrate are flavors; and (ii) the…
A federal court in California has dismissed as preempted certain claims filed by a putative class alleging that Unilever deceptively markets “I Can’t Believe It’s Not Butter! Spray.” Pardini v. Unilever U.S., Inc., No. 13-1675 (N.D. Cal., order entered July 9, 2013). The dismissal was without prejudice, and the plaintiff has 30 days to amend her complaint. Other claims were also dismissed without prejudice because they were not sufficiently pleaded or because the plaintiff lacked standing to assert a claim under the consumer protection laws of the other states named in the complaint. A claim for unjust enrichment was dismissed with prejudice. The plaintiff claims that the product is deceptively marketed as having “0 fat” and “0 calories” when it actually contains 771 calories and 82 grams of fat per bottle. While the product label specifies that the no-fat and no-calories claim is per serving, and users are referred to…
Maine Governor Paul LePage (R) has reportedly vetoed legislation (LD 1181) that would have required food companies with more than $1 billion in annual sales to disclose their use of priority chemicals such as bisphenol A (BPA) to the state. According to his July 8, 2013, veto letter, LePage rejected the measure for lack of funding, writing that lawmakers failed to allocate adequate resources for the program’s administration. He also noted that the bill would have established the actions of other states as “credible scientific evidence,” “regardless of whether other states use scientific analyses to reach their conclusions,” while asking Maine agencies “once again to re-visit which chemicals are considered of ‘high concern.’” “In addition, the federal government, through potential amendments to the Toxic Substances Control Act, may be exploring reasonable and consistent measures to address these concerns,” concluded LePage, who previously supported legislation designed to strengthen Maine’s Priority Chemicals…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has slated a public pre-regulatory workshop for July 30, 2013, to gather input from stakeholders “on the content of a regulation that would address Proposition 65 (Prop. 65) warnings.” According to OEHHA, the regulation, “if formally proposed and adopted, would either supplement or replace existing OEHHA regulations governing Proposition 65 warnings and conform to any statutory changes if enacted.” Gov. Jerry Brown (D) has indicated his intent to amend the law in 2013. Among the proposed changes OEHHA is considering are (i) requiring, at a minimum, information in all warnings, the health effect for which the chemical was listed, how a person will be exposed and “simple information (such as washing hands) on how to avoid or reduce an exposure”; (ii) “Approved warning methods and content for use by manufacturers and retailers regarding exposures to listed chemicals in foods, including foods…
At the behest of the U.K. Food Standards Agency (FSA), an independent reviewer has issued a final report on the agency’s response “to the adulteration of processed beef products with horse and pork meat and DNA.” Authored by Pat Troop, former chief executive of the Health Protection Agency, the report evaluates FSA’s “relevant capacity and capabilities,” including (i) “the response of the FSA to any recent prior intelligence on the threat of substitution of horsemeat for beef in comminuted beef products available in the U.K.,” (ii) the “strategic, tactical and operational response” to initial test results, (iii) “communication from the FSA to the public, parliament, and other stakeholders,” (iv) FSA’s engagement with the food industry and other regulatory agencies, and (v) “the enforcement response of the FSA, in terms of the powers available and arrangements for conducting investigations into potential breaches of food law or other law, including liaison and…
Following a request from the European Commission concerning the declining health of bees in Europe, the European Food Safety Authority (EFSA) has published new guidance for assessing the potential risks to bees from the use of pesticides. Noting that a previous risk assessment for honeybees did not fully account for risks from chronic or repeat exposure to pesticides, or the potential risks to larvae, EFSA said that the new guidance fills these gaps, adds schemes for bumble bees and solitary bees and proposes a new method for assessing whether the potential harm posed to bees from the use of a plant protection product is acceptable. “This method—which gives a more precise assessment of acceptable loss of foragers than the existing approach—should afford greater protection to honey bee colonies situated on the edge of fields treated with pesticides,” said EFSA. According to EFSA pesticide experts, the attributes to protect honey bees are…
The Codex Alimentarius has announced new food safety and nutrition standards that strive to “protect the health of consumers worldwide.” The regulations include guidance on preventing and reducing ochratoxin A—a reportedly carcinogenic contaminant—in cocoa, avoiding microbiological contamination of berries, preventing hydrocyanic acid in cassava, and when to label food with ”non-addition of sodium salts.” The commission also seeks to protect consumers against fraud and ensure fair food trade practices for products such as avocados, chanterelles, pomegranates, olives, and fish products. “The standards help buyers and sellers establish contracts based on Codex specifications and make sure that the consumers get from the products what they expect,” explained a news release. The recommendations also include nutrient references for sodium and saturated fat, as well as maximum pesticide residue limits for certain food additives. Meanwhile, Codex celebrated its 50th anniversary at its annual meeting, held in Rome, July 2, 2013. The session was attended by 620…
The National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration (NOAA) has published a final rule “to enhance the requirements for documentation to support labels on tuna products that represent the product as dolphin-safe.” According to NMFS, the rule “is intended to better ensure dolphin-safe labels comply with the requirements of the DPCIA [Dolphin Protection Consumer Identification Act] and to ensure that the United States satisfies its obligations as a member of the World Trade Organization (WTO).” Information about an adverse WTO ruling in a dispute with Mexico over U.S. dolphin-safe labeling provisions appears in Issue 424 of this Update. See Federal Register, July 9, 2013.
