A New York federal court has dismissed a lawsuit alleging that customers of Big Lots Inc. were misled by the packaging of Fresh Finds Colombian coffee. Devey v. Big Lots Inc., No. 21-6688 (W.D.N.Y., entered October 12, 2022). The plaintiff asserted that the canisters of coffee she purchased stated that the contents could produce "up to 210" 6-oz. servings, but preparation by following the serving instructions would only yield 152 servings. "[B]y focusing solely on the instructions for brewing a single serving, plaintiff’s calculation completely overlooks the brewing instructions on the label for larger batches, which offer a significantly higher potential yield. While 1 Tblsp. of ground coffee is recommended for a single serving, larger batches require 20% less ground coffee: ¼ cup (4 Tblsp.) for 5 servings, and ½ cup (8 Tblsp.) for 10," the court found. "Preparing coffee in batches of 5 or 10 per the label instructions,…
Category Archives Issue 784
On October 19, 2022, the U.S. Federal Trade Commission held a forum titled “Protecting Kids from Stealth Advertising in Digital Media” to discuss ever-growing concerns over advertising to youth, particularly in the digital landscape. This issue is one that affects many industries, including the food and beverage industry. Indeed, there is a program administered by BBB National Programs—the Children’s Food and Beverage Advertising Initiative—that is specifically designed for the marketing of food and beverage products to children. Shook Partners Lindsey K. Heinz and Madison M. Hatten reported on the FTC forum in FTC Discusses Growing Concerns Over Digital Advertising to Youth, an article in JD Supra. In this article, they lay out the regulatory landscape that applies when marketing products to youth and report on the specific issues raised at the FTC forum. Heinz had this takeaway from the forum: “The clear message is that the FTC is concerned about…
An Illinois consumer has brought a proposed class action against Herr Foods Inc., alleging the packaging of its jalapeño-poppers-flavored cheese curls misleads consumers as to the source of the product’s flavoring. Forlenza v. Herr Foods Inc., No. 22-5278 (N.D. Ill., filed September 27, 2022) The plaintiff asserted in the complaint that consumers have a hierarchy when it comes to the source of a food’s taste: the most preferred option is when the taste comes from a characterizing food ingredient, followed by natural flavors and artificial flavors. She also cited surveys finding that a majority of the public seeks to avoid artificial flavoring. The plaintiff said she read and relied on labeling including “Oven Baked With Real Cheese,” “Flavored Cheese Curls,” and a picture of a ripe jalapeño and cheese dripping out of one of the snacks, among other representations, and believed the product got its jalapeño and cheese taste from…
A group of consumers have filed a proposed class action against a North Carolina kombucha company, alleging the company misleads consumers as to the alcohol content of its beverages. Burke v. Tribucha, Inc., No. 22-0406 (E.D.N.C., filed October 6, 2022). Kombucha is a fermented tea drink that, when made without pasteurization, can develop a high amount of alcohol, their complaint argues. The plaintiffs, who live in Florida, Illinois, Virginia and Tennessee, assert that Tribucha failed to disclose that its raw kombucha is an alcohol beverage, instead labeling the products as containing only trace amounts of alcohol. They allege that the beverages contain more than twice the alcohol allowed for non-alcohol beverages. “Defendant’s disclaimer that the Products ‘contain a trace amount of alcohol,’ is woefully inadequate as it does not contain the mandated Surgeon General warning, is not prominently featured on the product, and is still sold to consumers under 21…
A federal court has blocked the state of Arkansas from enforcing a 2019 law that made it illegal for companies to use words like “burger” or “sausage” to describe products not made from animals. Turtle Island Foods SPC v. Soman, No. 19-0514 (E.D. Ark., entered September 30, 2022). The ruling was in a lawsuit brought by the Good Food Institute, Animal Legal Defense Fund and the American Civil Liberties Union on behalf of Tofurky, a maker of plant-based meat products. The suit challenged an Arkansas law that would have made it illegal for companies to use words typically associated with animal products to describe products not made from animals. The plaintiffs alleged that the law violates Tofurky’s First Amendment and Fourteenth Amendment rights. The court granted the plaintiffs a permanent injunction against the state, finding that the state appears to believe that the simple use of words like “burger,” “ham”…
A California man has sued the maker of Texas Pete-brand hot sauce products, alleging the company deceptively advertises itself as having Texas ties, while it is in fact made in North Carolina. White v. T.W. Garner Food Co., No 22-6503 (C.D. Cal., filed September 12, 2022). The plaintiff has brought a proposed class action against T.W. Garner Food Co., a North Carolina company, alleging the company’s labeling and advertising campaign “is overloaded with references to Texas.” “Although Defendant brands the Products ‘Texas Pete,’ there is surprisingly nothing Texas about them: unknown to consumers, the Products are standard Louisiana-style hot sauces, made with ingredients sourced outside the state of Texas, at a factory in North Carolina,” the complaint said. The plaintiffs noted that the packaging and labeling has “distinctly Texan imagery: the famed white ‘lone’ star from the Texan flag together with a ‘lassoing’ cowboy.” “Defendant concocted this false marketing and…
Three consumer groups have filed suit against the U.S. government urging action on a nearly two-decade-old petition seeking greater transparency in alcohol labeling. Center for Science in the Public Interest v. U.S. Dep’t of Treasury, No. 22-2975 (D.D.C., filed October 3, 2022). The plaintiffs—the Center for Science in the Public Interest, Consumer Federation of America and National Consumers League—are suing the U.S. Department of Treasury and Alcohol and Tobacco Tax and Trade Bureau (TTB), calling on them to require alcohol labeling “with the same basic transparency consumers expect in foods,” such as alcohol content, calorie and ingredient information. The groups initially filed a 2003 petition along with 66 other organizations and eight individuals, including four deans of schools of public health. “Enhanced transparency in alcohol labeling is a commonsense step that can help address the health and safety concerns related to the consumption of alcohol and would allow consumers to…
The U.S. Department of Agriculture has announced a November 15, 2022, public meeting to discuss and vote on adopting measures related to controlling Salmonella in poultry products. The meeting will also include an update on actions related to Cyclospora cayetanensis as well as an additional work charge on Cronobacter in powdered infant formula. Parties interested in expressing comments during the meeting must register by November 8, 2022.
