A California federal court has certified a class of California consumers who allege that Blue Diamond Growers’ almond milk is mislabeled as “All Natural” and hides its added sugar content by listing “evaporated cane juice” (ECJ) on its label instead. Werdebaugh v. Blue Diamond Growers, No. 5:12-cv-2724 (N.D. Cal., order entered May 23, 2014). The court granted plaintiff Chris Werdebaugh’s motion for certification of the California class but rejected his request for nationwide certification because he had not shown that California had any interest that outweighed the interests of other states in determining their own policies. Werdebaugh argued that the “All Natural” label on Blue Diamond’s almond milk is misleading because the product contains chemical preservatives, synthetic chemicals and added artificial color, and the label also lists ECJ as an ingredient when sugar is the common name as required by the U.S. Food and Drug Administration (FDA). The court ruled…
Category Archives Issue 525
A federal court in California has granted in part and denied in part the motion to dismiss in a putative class action alleging that Whole Foods Market Group misleads consumers by labeling certain food products containing sodium acid pyrophosphate (SAPP) as “All Natural.” Garrison v. Whole Foods Mkt. Group, Inc., No. 13-5222 (N.D. Cal., order entered June 2, 2014). Additional information about the complaint appears in Issue 504 of this Update. The court ruled that (i) the claims were not preempted under federal law; (ii) the primary jurisdiction doctrine did not apply (given the lack of a clear indication that the U.S. Food and Drug Administration intended to revisit its decision not to adopt formal regulations as to the meaning of “natural”); (iii) the plaintiffs sufficiently pleaded a cause of action (with the exception of allegations pertaining to marketing in various media and advertising—these claims were dismissed with leave to amend);…
A federal court in California has certified a nationwide class of consumers as to the injunctive relief requested in litigation against Dole Packaged Foods regarding its labeling claims that certain fruit products are “All Natural” despite the presence of ascorbic acid and citric acid, but limited the damages class to California consumers and the number of products at issue. Brazil v. Dole Packaged Foods, LLC, No. 12-1831 (U.S. Dist. Ct., N.D. Cal., San Jose Div., order entered may 30, 2014). Dismissed with prejudice were Dole products and label statements in the second amended complaint for which the named plaintiff did not move for class certification. An earlier ruling narrowing the claims is discussed in Issue 498 of this Update. Among other matters, the court disagreed with Dole’s argument that the class could not be ascertained because company records identifying purchasers or the products they purchased do not exist and further…
A California federal court has dismissed a putative class action against Diamond Foods Inc. alleging that its Kettle tortilla chips are mislabeled as “All Natural” despite containing synthetic ingredients. Surzyn v. Diamond Foods Inc., No. 14-cv-136 (N.D. Cal., order entered May 28, 2014). Citing a lack of basic factual assertions such as which product was the subject of the lawsuit, the court granted plaintiff Dominika Surzyn leave to amend within 21 days. Diamond Foods argued that its “All Natural” label is not misleading within the context of the rest of the packaging, which lists some of the ingredients—maltodextrin and dextrose—at issue in the case, and cited a Federal Trade Commission (FTC) determination that consumers’ understanding of “natural” is context-specific. The court rejected Diamond Foods’ assertions, finding that FTC had reached its conclusion not to dismiss any meaning and implication of the world “natural” but to decline to offer guidance on the…
A multidistrict litigation (MDL) court in Ohio has dismissed with prejudice six putative class actions involving plaintiffs from California, Colorado, Florida, New Jersey, Ohio, Pennsylvania, and Texas, alleging that Anheuser-Busch “routinely and intentionally adds extra water to its finished product to produce malt beverages that ‘consistently have significantly lower alcohol content than the percentages displayed on its labels.’” In re Anheuser-Busch Beer Labeling, Mktg. & Sales Practices Litig., MDL No. 13-2448 (N.D. Ohio, order entered June 2, 2014). Additional details about the litigation and the order consolidating the cases appear in issues 473 and 487 of this Update. Federal regulations allow malt beverages containing 0.5 percent or more alcohol by volume a tolerance of 0.3 percent in the alcohol content, “either above or below the stated percentage of alcohol,” and the affected jurisdictions have adopted or refer to these regulations in their statutes and regulations. The defendant argued in its motion…
A California bill requiring labels to disclose genetically modified (GM) ingredients in food recently failed to pass after a close vote in the state senate. Opponents argued that it would cost the average consumer as much as $400 per year for labeling a category of food that presents no risk to the public. Vermont became the first state to enact a GM ingredient-labeling law in May 2014. Additional information about that statute appears in Issue 521 of this Update. See Reuters, May 29, 2014.
The California Senate has passed a bill (S.B. 1000) that would require all sugar-sweetened beverages (SSBs) containing more than 75 calories per 12-ounce serving to carry labels warning of obesity, diabetes and tooth decay. Milk-based beverages and 100 percent fruit and vegetable juices would be exempt. Introduced in February 2014 by state Sen. Bill Monning (D-Carmel) and co-sponsored by the California Center for Public Health Advocacy, the “Sugar-Sweetened Beverages Safety Warning Act,” is backed by the California Medical Association, Latino Coalition for a Healthy California and California Black Health Network. Noting “overwhelming evidence” linking obesity and the consumption of sweetened beverages,” and claiming that SSBs are the “single largest source of added sugars in the American diet,” the bill specifically seeks to “protect consumers and promote informed purchasing decisions . . . about the harmful health effects that result from the consumption of drinks with added sugars.” If passed by…
The U.K. Advertising Standards Authority has reversed an earlier decision upholding two complaints alleging that Heineken UK Ltd.’s print and TV advertisements gave the impression that its Kronenbourg 1664 beer was brewed in France and made primarily from French hops, despite text disclaimers stating that the product was “Brewed in the UK.” According to ASA, Heineken argued that Kronenbourg 1664 “could correctly and reasonably be described as a ‘French beer’ because of its heritage, the origin of its recipe and the use of the Strisselspalt hop, as well as its ownership and the yeast type used.” In particular, the company noted that the aromatic Strisselspalt hop— though not the sole hop used in the beer—was the key ingredient in creating the beer’s final character and taste, attributes that could not be captured “from a simple calculation of the proportion in which [the Strisselspalt hop] featured in the recipe.” In its…
The European Food Safety Authority (EFSA) has launched a public consultation on a draft scientific opinion evaluating “allergenic foods and food ingredients for labeling purposes.” Prepared by EFSA’s Panel on Dietetic Products, Nutrition and Allergies (NDA), the new draft updates previous scientific opinions “relative to food ingredients or substances with known allergenic potential listed in Annex IIIa of 2003/89/EC,” including cereals containing gluten, milk and dairy products, eggs, nuts, peanuts, soy, fish, crustaceans, mollusks, celery, lupin, sesame, mustard, and sulfites. To this end, NDA addresses the following topics: (i) “the prevalence of food allergies in unselected populations”; (ii) “proteins identified as food allergens”; (iii) “cross-reactivities”; (iv) “the effects of food processing on allergenicity of foods and ingredients”; (v) “methods for the detection of allergens and allergenic foods”; (vi) “doses observed to trigger adverse reactions in sensitive individuals”; and (vii) “approaches used to derive individual and population thresholds for selected allergenic…
Responding to a lawsuit filed by the Center for Science in the Public Interest (CSPI) and the Mercury Policy Project (MPP), the U.S. Food and Drug Administration (FDA) will soon update guidance on the permissible levels of mercury in seafood and the associated potential risks for pregnant women and young children. While CSPI and MPP urged the agency to mandate mercury-level labeling on seafood and at fish counters in grocery stores, FDA Commissioner Margaret Hamburg said that labels would not be mandated under its forthcoming guidelines. Previous guidance issued in 2010 indicated that pregnant women should limit seafood intake to less than 12 ounces weekly and discouraged consumption of shark, swordfish, tilefish, and king mackerel. See Associated Press, May 30, 2014. Issue 525
