A consumer has filed a putative class action against Kellogg Co. alleging the company produces Mother’s Cookies® with partially hydrogenated oil (PHO), which contains trans fat, in violation of the U.S. Food and Drug Administration’s (FDA’s) ban on the ingredient. Hawkins v. Kellogg Co., No. 16-0147 (S.D. Cal., filed January 21, 2016). The plaintiff asserts FDA “determined that PHO is unsafe for use in food” in 2015, and alleges as a result that Kellogg is prohibited from using the food additive in its cookies. “Today there is no question about the scientific consensus on trans fat,” the complaint argues, in describing several studies examining the alleged human health effects of PHO consumption. For alleged violations of California consumer-protection statutes, nuisance and breach of implied warranty, the plaintiff seeks class certification, restitution, an injunction, a corrective advertising campaign and attorney’s fees. Issue 594
Category Archives Issue 594
The Association of National Advertisers, Inc. (ANA) has filed an amicus brief in a case challenging San Francisco’s health code provisions requiring advertisements on sugar-sweetened beverages (SSBs) notifying the public of alleged health risks associated with SSB consumption. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., amicus brief filed January 22, 2016). The brief focuses on First Amendment arguments against requiring private parties to include government speech on their product labels. “The City of San Francisco’s imposition of the Warning Mandate in reaction to potential over-consumption of sugar-sweetened beverages by its citizens, whatever the merits of that concern, takes regulatory Nannyism to new levels and is wholly incompatible with First Amendment protections afforded to commercial speech,” the brief argues. “If this Court were to uphold the Board of Supervisors’ conscription of sugar-sweetened beverage ads to convey government views on health issues there would be virtually no limit to…
A Delaware cheese company and two individual defendants have pled guilty to a misdemeanor violation of the federal Food, Drug, and Cosmetic Act for distributing adulterated ricotta, queso fresco and fresh cheese curds in several neighboring states. U.S. v. Roos Foods, Inc., No. 16-0013 (D. Del., information filed January 22, 2016). Roos’ cheese was connected to a 2014 outbreak of Listeria that caused five adults and three newborns to contract listeriosis. The criminal information alleged the company produced the cheese in unsanitary conditions, including the “[f]ailure to clean food-contact surfaces as frequently as necessary to protect against contamination of food” and “failure to store raw materials or ingredients in a manner that protects against contamination.” In their agreement with the U.S. Food and Drug Administration (FDA), the defendants agreed to an injunction preventing them from processing or distributing food products until they undergo an FDA inspection and facility testing by…
The European Food Safety Authority’s (EFSA’s) Panel on Food Contact Materials, Enzymes, Flavorings and Processing Aids (CEF) has announced a public consultation on its draft statement on exposure assessment of food enzymes. Recognizing the difficulty in applying current exposure assessment guidelines to food enzymes, which are added during processing of food and food ingredients, the draft statement recommends a tiered approach based on “more realistic” exposure scenarios as opposed to methods that rely solely on upper use levels. In particular, the CEF Panel notes that food enzyme guidance adopted in 2009 stipulates that, “Potential human exposure to the food enzyme and to any other constituent or by-product of concern should be assessed considering all proposed uses. A conservative technique such as the ‘budget method’ should be used … assuming that they (i.e. foods and beverages) always contain the food enzyme at its proposed upper use level.” This budget method apparently…
The California Environmental Protection Agency’s (Cal/EPA’s) Office of Environmental Health Hazard Assessment (OEHHA) has announced the development of hazard identification materials for nickel and nickel compounds, perfluorooctanoic acid (PFOA) and its salts, and pefluorooctane sulfonate (PFOS) and its salts to assist in the agency’s consideration of the chemicals for possible listing under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Food is a major source of nickel exposure, with an average intake for adults estimated to be approximately 100 to 300 micrograms per day (µg/d), while PFOA and PFOS are chemical compounds that have been widely used in commercial and industrial applications, including food packaging and water-resistant coatings. OEHHA specifically seeks data relevant to assessing the chemicals’ reproductive toxicity for evaluation by the Developmental and Reproductive Toxicant Identification Committee. Comments are due by April 4, 2016. See OEHHA News Release, February 19, 2016. Issue 594
The U.S. Department of Agriculture’s Office of the Under Secretary for Food Safety and U.S. Food and Drug Administration are convening a March 7, 2016, public meeting in College Park, Maryland, to evaluate draft positions for consideration at the 10th Session of the Codex Committee on Contaminants in Food slated for April 4-8 in Rotterdam, The Netherlands. Agenda items for the March 7 meeting include papers about maximum levels for methylmercury in fish and mycotoxins in spices; and discussions of a draft Code of Practice to prevent and reduce arsenic contamination in rice and proposed draft maximum levels for cadmium in cocoa and cocoa-derived products. See Federal Register, February 11, 2016. Issue 594
Citing annual costs of $1,500 in wasted food to the average American family, and a “dizzying array of misleading labels,” U.S. Sen. Dick Blumenthal (D-Conn.) is reportedly poised to introduce a proposal that would establish uniform national standards for food dating. “Terms like ‘best by,’ ‘sell by’ and ‘use by’ have no bearing on food safety, leading 90 percent of Americans to throw away food past those dates out of mistaken concern for food safety risks,” Blumenthal said in a February 19, 2016, Facebook post. According to the Hartford Courant, Blumenthal’s legislation would require labels to indicate the duration of a product’s quality by providing dates preceded by “best if used by.” The proposal would also mandate that “high-risk foods,” including hot dogs and deli meats, to carry labeling with “expires on” dates. A similar initiative was included in provisions of the Food Recovery Act of 2015 (H.R. 4184), which…
Led by the Vermont Maple Sugar Makers’ Association (VMSMA), the maple syrup industry has penned a February 15, 2016, letter asking the U.S. Food and Drug Administration (FDA) to take enforcement action “concerning misrepresentative labeling of food products whose labels incorrectly indicate the presence of maple syrup.” The signatories—which include the International Maple Syrup Institute and North American Maple Syrup Council, as well as several state organizations—identify several instant oatmeal, natural sweetener and other products that allegedly violate Food, Drug and Cosmetic Act regulations by using the word “maple” in their product descriptions without containing maple syrup. Drawing parallels to the agency’s conclusion that Hampton Creek’s Just Mayo® eggless sandwich spread was mislabeled because “mayo” has “long been used and understood as shorthand or slang for mayonnaise,” the letter argues that the term “maple” “has long been used and understood to refer to ‘maple syrup.’” As VMSMA opines, “This unchecked…
