The World Health Organization (WHO) has issued a November 4, 2016, report titled "Tackling food marketing to children in a digital world: trans-disciplinary perspectives," which urges policymakers “to reduce children’s exposure to all forms of marketing for foods high in fats, salt and sugars [HFSS], including via digital media.” In particular, the report claims digital marketing campaigns take advantage of regulatory loopholes to amplify the traditional media advertising of HFSS foods, “achieving greater ad attention and recall, greater brand awareness and more positive brand attitudes, greater intent to purchase and higher product sales.” The report calls attention to the privacy issues that purportedly surround the digital marketing of foods to children, including the collection and use of geo-location and personal data. It also warns that “some food chains partner with gaming companies in order to, for example, make the chain’s restaurants important game locations,” while other advertisers reportedly rely on advergames, social…
Category Archives Issue 621
The Organic Consumers Association (OCA) and Beyond Pesticides have filed a complaint against the Sioux Honey Association alleging the company’s Sue Bee® honey products contain the herbicide glyphosate despite being marketed as “Pure” and “Natural.” Organic Consumers Assoc. v. Sioux Honey Assoc. Coop., No. 008012 (D.C. Super. Ct., filed November 1, 2016). The complaint acknowledges that the glyphosate “may be due to the application of glyphosate on crops by neighboring farms and unrelated to beekeeping activities” but argues that the labeling is inaccurate regardless. The plaintiff organizations seek an injunction enjoining the labeling and mandating a corrective advertising campaign as well as costs. “A consumer seeing the words ‘Pure,’ ‘100% Pure’ or ‘Natural’ on a honey product would reasonably expect that product to contain nothing other than honey,” OCA International Director Ronnie Cummins said in a November 1, 2016, press release. “Regardless of how these products came to be contaminated,…
A California federal court has denied Vigo Importing Co.’s motion to dismiss a lawsuit alleging the company mislabels its products as containing octopus when they are actually composed of jumbo squid. Fonseca v. Vigo Importing Co., No. 16-2055 (N.D. Cal., order entered October 26, 2016). Vigo Importing sought to dismiss the claim on jurisdictional grounds, arguing that based on its sales figures, the amount in controversy could not possibly meet the $5 million threshold required by the Class Action Fairness Act to allow a federal court to consider the case. The court disagreed, noting that the sales price was only part of the calculation; the potential damages determination requires information on the cost of the products as well as the value of the product if composed of jumbo squid. Details on the complaint appear in Issue 602 of this Update. Issue 621
A New York federal court has dismissed a consumer’s lawsuit alleging Mondelez International sells its Sour Patch Watermelon candy with unpermitted slack fill. Izquierdo v. Mondelez Int’l Inc., No. 16-4697 (S.D.N.Y., order entered October 26, 2016). The lead plaintiff had asserted that the box he purchased contained 28 pieces of candy but had enough space for 50 pieces. Additional details about the complaint appear in Issue 609 of this Update. After finding that the plaintiff did not have standing for an injunction, the court turned to the candy company’s arguments, dismissing its assertion that the accurate net weight released it from liability. Further, the court found it inappropriate to consider at the motion-to-dismiss stage whether a consumer could determine the contents of the package by shaking or squeezing it. The court was persuaded by Mondelez’s argument that the plaintiffs had failed to state a claim because they did not clarify what…
The Pennsylvania Supreme Court has denied an application for extraordinary relief filed by several industry groups in an effort to prevent Philadelphia’s 1.5-cent-per-ounce tax on sugar-sweetened beverages (SSBs) from taking effect on January 1, 2017. Williams v. City of Philadelphia, No. 160901452 (Ct. C.P., Philadelphia Cty., order entered November 2, 2016). The one-page order does not provide any reasoning for the decision. The lower court currently presiding over the case has indicated that it will rule on the tax’s legality before the January 1 enforcement date. See The Philadelphia Inquirer, November 2, 2016. Details about the industry lawsuit appear in Issue 617 of this Update. Issue 621
The U.S. Food and Drug Administration (FDA) has requested public input on how consumers use “flavored nut butter spreads and products that can be used to fill cupcakes and other desserts,” as part of its effort to establish a reference amount customarily consumed (RACC) and serving size for these products. Responding to a March 4, 2014, citizen petition filed by Nutella® manufacturer Ferrero Inc., which asked FDA to re-categorize nut cocoa-based spreads as a breakfast condiment similar to “honey, jams, jellies, fruit butter, [or] molasses” as opposed to a dessert topping, the agency notes that it has since updated certain RACCs and needs additional data “to determine the customary consumption amounts of and appropriate product category for flavored nut butter spreads (e.g., cocoa, cookie, and coffee flavored).” To decide if it needs to create a new RACC category for these products with a serving size of 1 tablespoon, FDA seeks responses to…
The Federal Trade Commission (FTC) has approved a modified final order settling charges that the $28-billion merger of Delhaize Group NV/SA and Koninklijke Ahold N.V. would be anticompetitive. In re Koninklije Ahold N.V., No. C-4588 (F.T.C., order entered October 14, 2016). According to the modified order, the companies must divest 81 stores—including locations of Giant, Hannaford, Martin’s, Food Lion and Stop & Shop—to seven companies before merging. Issue 621
The Cornucopia Institute has filed a complaint with the U.S. Department of Agriculture “requesting an investigation into the organic certification of hydroponic operations in the U.S. that appear to conflict with the statutory language of the Organic Foods Production Act (OFPA) of 1990 and current federal regulations governing organic food production.” The organization argues that two companies, Wholesum Harvest Family Farms and Driscoll’s, sell hydroponically raised produce as certified organic despite failing to meet federal standards on the contents of their soil, which allegedly include peat moss, coconut cuir and hydrolyzed soy fertilizers made from genetically modified soybeans. “Hydroponic and container systems rely on liquid fertilizers developed from conventional crops or waste products,” said a Cornucopia Institute farm policy analyst in a November 1, 2016, press release. “Suggesting that they should qualify for organic labeling is a specious argument.” Issue 621
A New York consumer has filed a lawsuit against Buffalo Wild Wings, Inc. (BWW) alleging the company misleads vegetarian customers into believing the restaurant chain offers vegetarian fare when certain offerings are actually cooked in beef tallow. Borenkoff v. Buffalo Wild Wings, Inc., No. 8532 (S.D.N.Y., filed November 2, 2016). The complaint asserts that BWW does not disclose its use of beef tallow in its menu descriptions, nutritional information or website, and further, the usage departs from the industry standard of non-beef cooking oil. The plaintiff seeks class certification, an injunction, compensatory and punitive damages, costs and attorney’s fees for an alleged violation of New York’s consumer-protection statute and unjust enrichment. Issue 621
