Kashi Co. and its unit Bear Naked Inc. have both settled class actions stemming from their claims that their products are “All Natural” and include “Nothing Artificial.” Astiana v. Kashi Co., No. 11-1967 (S.D. Cal., settlement filed May 2, 2014). Thurston v. Bear Naked Inc., No. 11-2890 (S.D. Cal., settlement filed May 2, 2014). The plaintiffs alleged in California federal court that the companies, both part of Kellogg Co., advertised their products as all natural and charged higher prices based on that quality while inserting synthetic material into their foods. A judge certified both classes in July 2013 after ruling that the plaintiffs had proved the artificiality of some of the “natural” ingredients, including hexane-processed soy ingredients and pyridoxine hydrochloride. Kashi has agreed to pay $5 million to California consumers who purchased its products and to alter its labeling and advertising to remove the claims at issue; in a similar…
Category Archives Issue 523
Samuel Lightsey, who formerly managed the Peanut Corp. of America, which was implicated in a 2008-2009 nationwide Salmonella outbreak, has entered a guilty plea to six of 76 criminal charges, including conspiracy, mail and wire fraud, obstruction of justice, and other counts related to the distribution of adulterated or misbranded food. U.S. v. Lightsey, No. 13-CR-12 (M.D. Ga., Albany Div., plea entered May 7, 2014). Facing a potential sentence of six years in prison, Lightsey has agreed to cooperate with the prosecution. The outbreak sickened more than 700 who consumed products containing tainted peanut paste, and at least nine died. According to the plea agreement, in September 2008, Lightsey and others shipped a lot of peanut paste from the company’s Blakely, Georgia, facility “without ever having submitted a sample from said lot to a laboratory for microbiological testing.” This food was misbranded because it was accompanied by a document containing…
Texas has filed a motion to intervene in Alamo Beer Co. LLC’s trademark infringement suit against Old 300 Brewing LLC, asserting that the state has the rights to the “Alamo” mark. Alamo Beer Co. LLC v. Old 300 Brewing LLC, No. 14-285 (W.D. Tex., motion filed April 28, 2014). Filed in March 2014, Alamo Beer’s original complaint alleged that Old 300 Brewing (doing business as Texian Brewing Co.) infringed on its mark by using the silhouette of the Alamo on Texian beer labels, which image Alamo Beer has used and federally registered as a trademark for beer labeling since 1997. Texas argues that it has registered and common law rights to the use of the Alamo Mission’s likeness in commerce. In 2013, the state began registering the Alamo silhouette in a variety of categories, including blankets, apparel, jewelry, leather goods, digital media, packaged foods, and museum services. In the category…
A federal court in the Southern District of California has transferred to the Northern District a lawsuit filed in January 2014 against Pepsico, Inc., alleging that its products violate the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) because they contain 4 methylimidazole (4-MEI), a chemical included on the Prop. 65 list of substances known to the state to cause cancer, and the company has not provided appropriate consumer warnings. Riva v. Pepsico, Inc., No. 14-0340 (S.D. Cal., order entered April 30, 2014). Eight similar federal lawsuits against Pepsico were filed either in the Northern District or transferred there and are scheduled for a May 29, 2014, case management conference. Finding that transfer to the Northern District would promote the efficient use of judicial resources, the court granted the defendant’s motion. The plaintiffs had argued that under the first-to-file rule, all of the cases should have been…
A federal court in California has dismissed all but one claim in a putative consumer-fraud class action against The Hershey Co., finding that, based on his deposition, the plaintiff relied only on the label claims for antioxidants in making his purchasing decisions. Khasin v. The Hershey Co., No. 12-1862 (N.D. Cal., order entered May 5, 2014). Information about a prior court ruling that dismissed other claims appears in Issue 463 of this Update. The court granted the company’s motion for summary judgment as to claims made on its website or in off-label advertising and as to “any claims based on alleged misrepresentations or omissions regarding vanillin, PGPR, serving size and alkalized cocoa powder.” The court also granted summary judgment as to claims alleging a failure to make disclaimers on the company’s mint products, i.e., that they should not be substituted as an entrée, lunch or meal and that they are not…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA), responsible for implementing the state’s Safe Drinking Water and Toxic Enforcement Act of 1986, has launched an interactive database that provides information about the results of biomonitoring testing on various groups, including teachers, children and mothers of Salinas, and firefighters. The database allows searching by project or chemical monitored and provides detailed information about testing results. See OEHHA Biomonitoring CA Notice, May 5, 2014. Issue 523
Food Standards Australia New Zealand (FSANZ) has issued the first phase of its Australian Total Diet Study (ATDS), which analyzed chemicals in Australian foods and beverages and concludes that acrylamide and aluminum levels are lower than or consistent with those found in similar foods in other countries. Still, FSANZ CEO Steve McCutcheon said that it was working with industry “to look at ways to reduce acrylamide levels in food, such as encouraging industry to use enzymes that reduce acrylamide formation.” Aluminum levels, which are at their highest levels in cakes, pikelets and pancakes, evidently showed “a slight exceedance for 2-5 year old high consumers.” According to FSANZ, this exceedance is unlikely to “represent a public health and safety issue—however, FSANZ is investigating whether the current permissions for aluminum-containing food additives are still appropriate.” The second ATDS phase will focus on chemicals such as bisphenol A, phthalates and perfluorinated compounds. See…
The U.K. Advertising Standards Authority (ASA) has dismissed a complaint alleging that a cereal advertisement shown at the beginning of a “U-rated” film “condoned or encouraged poor nutritional habits or an unhealthy lifestyle in children” and “disparaged good dietary practice.” Although Kellogg Marketing and Sales Company (UK) Ltd. included on-screen text stating the sugar content of the product and emphasizing the importance of a varied diet and lifestyle, ASA argued that the Coco Pops Rocks ad in question, which featured brand equity characters and aired before a movie, would appeal to children, “who would not have the reading comprehension skills or relevant knowledge to be able to interpret and understand the information about the sugar content of the product and that it should be eaten as part of a varied diet and active lifestyle.” “We also considered that, in the context of the exciting action in the visuals of the ad,…
The European Food Safety Authority’s (EFSA’s) Panel on Additives and Products or Substances used in Animal Feed (FEEDAP Panel) has issued an opinion on Bacillus species used in animal production as microbial feed additives or as the source of other feed additives, mainly enzymes. Noting that the main “concern for humans, and, to a lesser extent livestock, associated with Bacillus is a capacity for toxin production,” the FEEDAP Panel cautions that the capacity for toxin production and the nature of the toxins produced is “unevenly distributed over the genus, occurring frequently in some species and more rarely in others.” According to the panel, the selection of strains belonging to the B. cereus taxonomic group for direct use in animal production is considered inadvisable. For other species, “concerns appear to be associated to the production of surfactin like-lipopeptides, although the relation between the presence of these compounds and/or other toxic factors and the…
The European Food Safety Authority’s (EFSA’s) Panel on Additives and Products or Substances Used in Animal Feed (FEEDAP Panel) has proposed reducing the maximum amount of zinc permitted in animal feed “to ensure the health, welfare and productivity of the target species.” According to the FEEDAP Panel, which reviewed the available literature “as well as data received from national authorities of European countries and from stakeholders,” the new maximum levels include: (i) 150 mg of Zinc per kilogram (Zn/kg) complete feed for piglets, sows, rabbits, salmonids, cats, and dogs; (ii) 120 mg Zn/kg complete feed for turkeys for fattening; and (iii) 100 mg Zn/kg complete feed for all other species and categories. In addition, “the use of phytase in feeding piglets, pigs for fattening and sows would allow a further reduction of the newly proposed total maximum contents by 30% (from 150 to 110 mg Zn/kg feed for piglets and…
