According to Wall Street Journal reporter Mike Esterl, products with the “natural” or “all natural” label represented $40 billion in retail sales in the United States in the preceding 12 months and market researchers have found that more than 50 percent of Americans seek the “all natural” label when they shop for food. Still, food and beverage companies have begun “quietly removing” these words from their product labels under pressure from dozens of lawsuits filed during the past two years challenging the terminology as false and deceptive. Esterl notes that the litigation is complicated due to the Food and Drug Administration’s (FDA’s) decision not to define the terms. He observes that courts have, in recent months, stayed several of these lawsuits and referred questions to FDA about whether the “natural” designation can be used on products containing genetically modified (GM) ingredients. Details about the latest referral by a federal court…
Category Archives Issue 503
The Yale University Rudd Center for Food Policy & Obesity has released an updated report on food advertising to children and teens that criticizes the fast-food industry for failing to meet its own marketing standards. Funded by the Robert Wood Johnson Foundation, “Fast Food FACTS 2013” claims that fast-food restaurants spent $4.6 billion on total advertising in 2012, an 8 percent increase over 2009. In particular, the report notes that even as “older children’s total exposure to fast food TV and internet advertising declined,” “fast food marketing via social media and mobile devices—media that are popular with teens—grew exponentially.” According to the Rudd Center, which reportedly surveyed the menus and marketing practices of 18 top fast-food restaurants in the United States, children aged 6-11 saw 10 percent fewer fast-food TV ads in 2012 compared to 2009, while many chains discontinued popular websites geared toward younger audiences. At the same time,…
A December 6, 2013, hearing will be held before a Federal court in Georgia on pending pretrial motions in a criminal lawsuit filed against former Peanut Corp. of America officials and employees, including owner Stewart Parnell. United States v. Parnell, No. 13-CR-12 (M.D. Ga., November 5, 2013). The company was the source of a nationwide Salmonella outbreak in 2009, and the 76-count indictment charges four individuals with conspiracy, mail and wire fraud, obstruction of justice, and other counts related to the distribution of adulterated and misbranded food. Among the pending motions are requests for the disclosure of government witnesses and release of Brady materials (exculpatory information).
Wooden Nickel Music, which owns the copyright to the musical composition “Lady” and the sound recording embodying that composition by the group Styx, has filed an infringement action against Anheuser-Busch, LLC (AB) and a film company that purportedly created a video, currently on YouTube, including part of the recording. Wooden Nickel Music v. Anheuser-Busch, LLC, No. 13-8145 (C.D. Cal., filed November 4, 2013). The video, titled “Bud Light Commercial – The Elevator,” features a scheme in which young men cause an elevator with an attractive woman to stop between floors, so one of the men can share a beer and dance with the woman and, in the process, obtain a phone number. “Lady” is one of the songs played during the dance scene. According to the complaint, AB’s associate general counsel claims it has no record of the company “ever having seen the referenced work using Bud Light indicia” and…
A federal court in New Jersey has, on the basis of the primary jurisdiction doctrine, halted proceedings alleging that General Mills misleads consumers by labeling its Kix® cereals with bioengineered corn as “made with all natural corn.” In re General Mills, Inc. Kix Cereal Litig., No. 12-249 (D.N.J., order entered November 1, 2013). Citing rulings from California and Colorado referring the matter to the U.S. Food and Drug Administration (FDA) for resolution, the court stated that “the issue of whether products may be labeled ‘Natural’ when they are made with bioengineered forms of corn falls within the expertise of the FDA and deference to the FDA’s regulatory authority is appropriate here.” Information about the Colorado litigation appears in Issue 492 of this Update. The court “administratively terminated” (i) the action “until such time as the FDA responds to this referral” or the referrals in the two other cases, and (ii) the…
A federal court in Washington has dismissed the second amended consumer fraud complaint filed against Costco Wholesale Corp. concerning its VitaRain® Enhanced Water Beverage; while the court dismissed the complaint without leave to amend, it did not dismiss it with prejudice. Maple v. Costco Wholesale Corp., No. 12-5166 (E.D. Wash., order entered November 1, 2013). The plaintiff claimed that the name “VitaRain” is itself deceptive, and the court disagreed, finding it implausible that it could “deceive a substantial portion of the public into believing that the beverage is ‘full of vitamins only’ or that it is a ‘nutritional’ or ‘healthy’ beverage. The name ‘VitaRain’ is largely nonsensical.” The plaintiff also associated the name with another beverage product containing the word “vitamin,” and the court stated in this regard, “Plaintiff’s claim must be limited to the actual representation, ‘VitaRain’ in this case, and not some imagined representation he arrived at through…
While the Ninth Circuit Court of Appeals has granted the Food and Drug Administration’s (FDA’s) motion for expedited consideration of its emergency motion to stay a district court order establishing rulemaking deadlines under the Food Safety Modernization Act, it denied the stay pending appeal. Ctr. for Food Safety v. Hamburg, No. 13-16841 (9th Cir., order entered November 4, 2013). Details about the motion appear in Issue 501 of this Update. The Ninth Circuit has, however, deemed “the period of compliance established by the district court tolled” due to the “government shutdown.” It extended until December 20, 2013, the date on which FDA will be required to publish a notice of proposed rulemaking addressing novel requirements for preventing the intentional adulteration of food. The Ninth Circuit also granted FDA’s motion to expedite the hearing of its appeal. Thus, the opening brief must be filed by December 23, the answering brief is due…
The mayor of Kauai County, Hawaii, has vetoed a bill that sought to restrict pesticide use by agricultural companies developing genetically modified (GM) crops on the island. The bill would have required biotechnology crop companies to disclose what pesticides they use and established no-spray zones around schools, residences, medical facilities, roads, and waterways. Although the provision that aimed to restrict the growing of GM crops was eventually removed, seed companies that operate on Kauai reportedly said that the measure would disrupt their operations. Calling the bill “legally flawed,” Kauai County Mayor Bernard Carvalho Jr. purportedly agreed with the intent of the bill but argued instead for a study of the environmental and health impacts of pesticide use on the island. “We can and will find legal means to address these important health and safety issues,” Carvalho said in a statement. Critics reportedly claim that biotech crops contribute to extensive pesticide…
Voters in Telluride, Colorado, have rejected a proposed 1-cent-per-ounce tax on sugar-sweetened beverages (SSBs) in a 683-313 vote. Proceeds from the tax would have reportedly funded youth health initiatives. According to a media source, “Kick the Can Telluride” was “by far the most controversial question” on the ballot, attracting outside interest from philanthropists and industry lobbying groups bankrolling campaigns for and against the ballot question. Additional details about the Telluride SSB tax campaign appear in Issue 500 of this Update. See Politico.com, November 6, 2013; WatchNewspapers.com, November 7, 2013.
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has issued a tentative agenda for the November 21, 2013, meeting of its Developmental and Reproductive Toxicant Identification Committee (DART IC). The committee, which determines whether a chemical has been shown to cause reproductive toxicity, will be reconsidering whether certain chemicals listed via the Labor Code mechanism as known to the state to cause reproductive toxicity should remain listed. It will also consider how to tabulate data from epidemiological studies in hazard identification documents using a matrix that includes columns for study design and sample size, outcomes of interest, exposure dosages measures, routes of exposure, and confounders, among other matters. See OEHHA News Release Update, November 7, 2013. Issue 504
12
