Following a Listeria outbreak allegedly linked to a Dole Food Co. salad manufacturing plant, the company is reportedly facing investigations by the U.S. Department of Justice (DOJ) and Food and Drug Administration (FDA). Several media outlets have reported that an FDA investigation obtained through a Freedom of Information Act request found Dole knew of nine positive tests for Listeria at the plant taken as early as July 2014, more than a year before the company closed the plant. See The Wall Street Journal, April 29, 2016. In response, Dole issued an April 29 statement expressing concerns “about the recent stories in some publications about the FDA’s observation reports. Those FDA reports deal with issues at our plant that we have corrected. We have been working in collaboration with the FDA and other authorities to implement ongoing improved testing, sanitation and procedure enhancements, which have resulted in the recent reopening of…
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The U.S. Supreme Court has denied certiorari in a Federal Trade Commission (FTC) lawsuit against POM Wonderful LLC and Roll Global LLC alleging the companies made false or misleading health claims about their pomegranate-derived products. POM Wonderful LLC v. FTC, No. 15-525 (U.S., certiorari denied May 2, 2016). The U.S. Court of Appeals for the District of Columbia previously upheld a Commission decision finding POM misled consumers by claiming its products treat, prevent or reduce the risk of heart disease and prostate cancer, with some claims purported to be supported by clinical studies. “I am pleased that the POM Wonderful case has been brought to a successful conclusion,” FTC Chair Edith Ramirez said in a May 2, 2016, press release. “The outcome of this case makes clear that companies like POM making serious health claims about food and nutritional supplement products must have rigorous scientific evidence to back them up.…
The European Food Safety Authority’s (EFSA’s) Panel on Contaminants in the Food Chain (CONTAM) has issued a scientific opinion assessing the human health risks of free and esterified 3- and 2-monochloropropane-1, 2-diol (MCPD) and glycidyl esters (GE) in food. According to CONTAM, which considered 7,175 occurrence data, “esters of 3- and 2-MCPD and glycidyl esters were found at the highest levels in palm oil/fat, but most vegetable oil/fats contain substantial quantities.” The panel warned that these substances—which form when refining vegetable oils at high temperatures—pose potential health concerns “for average consumers of these foods in all young age groups, and for high consumers in all age groups.” “There is sufficient evidence that glycidol is genotoxic and carcinogenic, therefore the CONTAM Panel did not set a safe level for GE,” said CONTAM Chair Helles Knutsen in a May 3, 2016, press release. “The exposure to GE of babies consuming solely infant…
The U.S. Food and Drug Administration’s (FDA’s) Center for Food Safety and Applied Nutrition has published a report finding that 77 percent of surveyed adults use the Nutrition Facts label at least some of the time when buying a food product. Intended to help the agency regulate food and dietary supplement labeling, the 11th edition of the FDA Health and Diet Survey relies on data from 2,480 participants interviewed by telephone or cellphone about their use of nutrition labels and understanding of nutrition claims, purchasing practices and general attitudes toward nutrition and health issues. The results highlight consumer attitudes about salt reduction, with almost all respondents agreeing “the nation eats more salt than we should.” Of these, 50 percent believe individuals are most effective in curbing their own salt consumption, while 25 percent believe the responsibility lies with food manufacturers and retailers, 5 percent with restaurants, and 5 percent with…
The U.S. Food and Drug Administration (FDA) has issued final guidance to help chain establishments with 20 or more locations (e.g., grocery and convenience stores, quick-service and fast-food restaurants, pizza delivery outlets, and movie theaters) comply with menu labeling requirements for standard menu items and self-service offerings under the Federal Food, Drug, and Cosmetic Act. According to FDA, the final guidance provides “additional examples and new or revised questions and answers on topics such as covered establishments, alcoholic beverages, catered events, mobile vendors, grab-and-go items, and recordkeeping requirements.” Enforcement of the menu labeling final rule will begin on May 5, 2017. See Federal Register, May 5, 2016. Issue 603
A consumer has filed a proposed class action against Vigo Importing Co. alleging its octopus product is actually jumbo squid, “which is significantly cheaper and of a lower quality than octopus.” Fonseca v. Vigo Importing Co., No. 16-2055 (N.D. Cal., San Jose Div., filed April 19, 2016). The complaint details each animal’s taxonomy within the animal kingdom and describes the current populations of each—octopus populations “have dwindled around the world due to over-fishing,” while “jumbo squid populations have been thriving” because of the squid’s “ability to adapt to changing ocean conditions caused by global warming.” As a result, “the cost of octopus has risen dramatically compared to the cost of squid,” and “due to similarities in texture, squid can easily be substituted for octopus without the consumer being able to tell the difference particularly when sold in a sauce like garlic sauce or marinara sauce.” The plaintiff argues that independent…
Two consumers have filed a putative class action against Panera LLC involving the restaurant chain’s “2.0” ordering system using touchscreen kiosks and a “fast lane” pick-up shelf, which they allege fails to accommodate the visually impaired. Gomez v. Panera LLC, No. 16-21421 (S.D. Fla., filed April 20, 2016). The plaintiffs argue that they each visited a Florida location of Panera and found themselves “unable to enjoy the same ordering and dining experience as sighted patrons” because they were “denied the ability to independently select and purchase lunch.” The kiosks “were not designed and programmed to interface with commercially available screen reader software and further were not equipped with auxiliary aids (such as an audio interface system) for disabled individuals who are visually impaired,” the complaint alleges. The plaintiffs further argue that Panera’s website is unusable to them because it does not integrate with their screen reader programs. They seek orders…
A consumer has filed a putative class action against Campbell Soup Co. alleging the company misrepresents its Healthy Request gumbo soup as “healthy” despite containing trans fat. Brower v. Campbell Soup Co., No. 16-1005 (S.D. Cal., filed April 25, 2016). Campbell has branded itself as “one of the world’s leading providers of healthy and nutritious foods,” the complaint asserts, in part by establishing a research group, Campbell’s Center for Nutrition & Wellness, and obtaining “heart-check” certification from the American Heart Association (AHA) for some of its products. Despite its marketing, Campbell adds “partially hydrogenated soybean oil, containing artificial trans fat, to Healthy Request Gumbo,” the plaintiff argues. The complaint details health risks reportedly linked to the consumption of trans fat, including increased risks of cardiovascular ailments, type 2 diabetes and Alzheimer’s disease. The “statements, images, and emblems” appearing on Healthy Request Gumbo’s label—the “Healthy Request” branding, “heart healthy” claim, vignettes of…
The Organic Consumers Association (OCA) has filed lawsuits against The Hain Celestial Group, Inc. and The Honest Co., Inc. alleging the companies’ “organic” infant formula products contain multiple substances prohibited for use in organic food by the U.S. Department of Agriculture (USDA). Organic Consumers Assoc. v. Hain Celestial Grp., Inc., No. 16-2533 (D.C. Super. Ct., filed April 5, 2016); Organic Consumers Assoc. v. Honest Co., Inc., No. SC125655 (Cal. Super. Ct., Los Angeles Cty., filed April 6, 2016). The lawsuit against Hain Celestial challenges the label claims of its Earth’s Best products, which the complaint argues are all labeled organic despite none meeting federal organic regulations. “Behind the picturesque red barn of the Earth’s Best logo displayed on each of the Falsely Labeled Products lies a chemical soup of synthetic, toxic, and hazardous ingredients,” the complaint argues. “For example, of the 48 ingredients in Earth’s Best Organic Infant Formula, more than…
A California federal court has dismissed a lawsuit alleging Kraft Heinz Food Co. mislabels its Heinz sauces as manufactured in the United States despite containing ingredients sourced outside the country, including turmeric, tamarind extract and jalapenos. Alaei v. Kraft Heinz Food Co., No 15-2961 (S.D. Cal., order entered April 22). The complaint failed to meet the heightened pleading standards associated with fraud claims, the court found, in part because she did not allege that the Heinz 57® sauce she bought contained any specific ingredients of foreign origin. Further, she could not have standing to assert misrepresentation claims against products she did not purchase without arguing the other sauces were substantially similar to Heinz 57®. Accordingly, the court granted Kraft’s motion to dismiss but allowed the plaintiff leave to amend. Additional information on the complaint appears in Issue 589 of this Update. Issue 602
