Snyder's-Lance Inc. has voluntarily dismissed a lawsuit seeking to appeal a decision holding that it could not trademark "Pretzel Crisps" as a name for its product, which Frito-Lay North America Inc. had challenged before the Trademark Trial and Appeal Board. Snyder's-Lance Inc. v. Frito-Lay N. Am. Inc., No. 21-1758 (4th Cir., filed August 31, 2021). The dismissal concludes years-long litigation disputing whether the "Pretzel Crisps" mark was too generic to be registered. An appeal of a lower court's ruling that the term is generic had been pending until Snyder's-Lance's voluntary dismissal.
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Shook Partner Cary Silverman joined the U.S. Chamber Institute for Legal Reform's (ILR's) Oriana Senatore for an episode of the organization's podcast Cause for Action to discuss his work preparing "The Food Court: Developments in Litigation Targeting Food and Beverage Marketing." Senatore asks Silverman, "Can you give us a flavor for this litigation? What types of food lawsuits are courts seeing and what is driving this increase?" "Flavor is exactly the right word, because that's the type of lawsuits that we're seeing most recently," Silverman explains. "Lawsuits that are concentrating on the flavoring or the ingredients of products seem to be, as one might say, the 'flavor of the month' of this type of litigation. We've seen, in our 2017 paper, there were certain types of lawsuits, like slack fill, that were sort of the rage a couple of years ago. While those have fallen to the wayside for various…
The U.S. Food and Drug Administration (FDA) has "launched a challenge to spur the development of affordable, tech-enabled traceability tools to help protect people and animals from contaminated foods by enabling the rapid identification of their sources and helping remove them from the marketplace as quickly as possible." The agency has asked "food technology solution providers, public health advocates, entrepreneurs and innovators across the human and animal food supply chain to present food traceability solutions that utilize economic models that are affordable, with costs that are proportional to the benefits received and can scale to encourage widespread adoption." FDA will accept submissions until July 30, 2021, and will select up to 12 winners for the challenge. Winners "will have the opportunity to present their work publicly in a webinar planned for September and their videos will be posted for public viewing."
A Russian cybercriminal group known as a "ransomware as a service" organization attacked JBS SA, the world's largest meat processor, according to the FBI. The attack led several of the company's meat processing plants to halt production for several days. While JBS is "the largest food manufacturer yet to be hit by ransomware," according to the Associated Press, "at least 40 food companies have been targeted by ransomware gangs over the last year." A cybersecurity expert reportedly told the news outlet that food companies are at "about the same level of security as manufacturing and shipping. Which is to say, not very.”
The U.S. Food and Drug Administration (FDA) has issued a compliance policy guide on aflatoxins in human food. "Aflatoxins may occur in food as a result of mold growth in susceptible raw agricultural commodities," the guide explains. "The growth of molds that produce aflatoxins is influenced by environmental factors such as temperature, humidity, and extent of rainfall during the pre-harvesting, harvesting, or post-harvesting periods. Foods most susceptible to molds that produce aflatoxins include: peanuts, corn, some tree nuts including Brazil nuts and pistachios, and some small grains such as rice. Because aflatoxins are known carcinogens to humans, the presence of aflatoxins in foods should be reduced to the lowest levels attainable using modern agricultural and processing techniques." FDA issued guides for aflatoxins in brazil nuts, peanuts and peanut products, and pistachio nuts.
Shook Partner Cary Silverman has authored a report exploring the rise in class actions filed in New York, which, he explains, "is largely a result of lawsuits targeting businesses that sell food and beverages." Class Action Chaos: The Rise of Consumer Class Action Lawsuits in New York, created in partnership with the New York Civil Justice Institute, details how "the percentage of class action lawsuits targeting products that New Yorkers place in their shopping carts, grab at a grocery store, or buy at a restaurant has gone up." "Lawsuits claiming that businesses mislead consumers in how they labeled, marketed, or advertised food made up about one-third of deceptive practices class actions in 2015. Now, these 'food court' lawsuits account for about 60% of New York’s consumer class actions – exceeding deceptive practices claims against all other products and services combined. Over 100 food class actions were filed in New York…
New York Attorney General Letitia James has announced a probe into whether baby food contains toxic elements such as arsenic and other metals. In a press release, James said, "“Baby food manufacturers have a legal and moral obligation to ensure the safety of their products, and provide peace-of-mind to the parents who rely on their products every day. Through this probe, I am committed to protecting the health and wellness of the next generation.” D.C. Attorney General Karl Racine filed a lawsuit against Beech-Nut Nutrition Co., alleging "that Beech-Nut’s deceptive and misleading advertising violated the District’s consumer protection laws and misled parents that its baby food underwent the most stringent testing and was fully safe for babies when, in fact, the food contained high levels of toxic heavy metals." Racine is quoted as saying, “No company should profit by illegally deceiving parents about products that actually jeopardize the health and…
An EU study has examined New Genomic Techniques (NGTs), which can create genetically modified organisms (GMOs), and their potential effects on creating a sustainable food system in Europe. In a press release, Commissioner for Heath and Food Safety Stella Kyriakides said, "The study we publish today concludes that New Genomic Techniques can promote the sustainability of agricultural production, in line with the objectives of our Farm to Fork Strategy. With the safety of consumers and the environment as the guiding principle, now is the moment to have an open dialogue with citizens, Member States and the European Parliament to jointly decide the way forward for the use of these biotechnologies in the EU." The announcement notes that the EU will begin an open consultation "to discuss the design of a new legal framework for these biotechnologies." Among the findings of the study are that "NGT products have the potential to…
The European Court of Justice has ruled that alga Lithothamnium calcareum cannot be used in the production of food labeled as organic for the purposes of adding calcium. Natumi GmbH v. Land Nordrhein-Westfalen, No. C‑815/19 (E.C.J., entered April 29, 2021). Natumi GmbH manufactured a drink labeled as organic that is marketed as calcium-rich because of its red algae content, but the German state North Rhine-Westfalia imposed a fine on the company for adding non-edible algae to its products. "Natumi acknowledges that, since the use of calcium carbonate is prohibited for the calcium enrichment of organic products, many producers of soya-, rice- and cereal-based organic drinks add the Lithothamnium calcareum alga to them because it is naturally high in calcium. In addition, Natumi argues that that alga is a natural alternative to calcium and that its use for enriching organic food should be permitted," the court found. However, it stated, allowing the…
According to a putative class action complaint, Kodiak Cakes LLC and Baker Mills Inc. deliberately mislead consumers by labeling Kodiak Cakes pancake and waffle mixes as containing 14 grams of protein despite allegedly containing only 11.5 grams. Hinkley v. Baker Mills Inc., No. 21-221 (D. Utah, filed April 13, 2021). "Consumers are increasingly health conscious and, as a result, many consumers seek foods high in protein to support weight loss, exercise, and general fitness, among other perceived health benefits of protein consumption," the plaintiffs argue. "To capitalize on this trend, Defendants prominently label their Kodiak Cakes products as providing specific amounts of protein per serving depending on the product, such as '14g protein' on the label of its Buttermilk Flapjack and Waffle Mix. Consumers, in turn, reasonably expect that each product will provide the actual amount of protein per serving that the label claims it will. In truth, however, Defendants’…
