A putative class action has alleged that Subway Restaurants Inc. sells tuna products that "do not contain any tuna nor have any ingredient that constitutes tuna"—the products "are completely bereft of tuna as an ingredient," according to the complaint. Dhanowa v. Subway Restaurants Inc., No. 21-0498 (N.D. Cal., filed January 21, 2021). "As independent testing has repeatedly affirmed, the Products are made from anything but tuna," the complaint asserts. "On the contrary, the Products are made from a mixture of various concoctions that do not constitute tuna, yet have been blended together by Defendants to imitate the appearance of tuna. Defendants identified, labeled and advertised the Products as 'tuna' to consumers, when in fact they were not tuna. Yet, Defendants have systematically and consistently continued to label and advertise the Products as 'tuna.'" The complaint does not note what the Subway products are purportedly composed of if not tuna. The plaintiffs…
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Two consumers have filed a putative class action alleging that Icelandic Provisions Inc.'s skyr cultured dairy product is misleadingly marketed as made in Iceland despite being produced in New York. Mantini v. Icelandic Provisions, Inc., No. 21-0618 (S.D.N.Y., filed January 23, 2021). The packaging for the skyr, which features the text "Traditional Icelandic Skyr" and photos of an Icelandic countryside, "gives consumers the belief it is made in Iceland," the complaint asserts. Although the back of the package indicates that the product is "made in Batavia, NY with domestic and imported ingredients," the plaintiffs allege they "relied upon the representations and indications of the Product's origins - literally and figuratively - in Iceland, and desired to purchase such a product." Alleging fraud, negligent misrepresentation, unjust enrichment and violation of Pennsylvania's consumer-protection statute, the plaintiffs seek class certification, injunctive relief, damages, costs and attorney's fees.
The U.S. Department of Agriculture has released its final rule governing the cultivation of hemp, which will take effect March 22, 2021. The draft rule would have required hemp to be shown to contain less than 0.3% tetrahydrocannibanol (THC) on testing conducted within 15 days of harvest, a proposal that drew criticism from several parties. The final rule reduces some of the requirements, such as allowing 30 days to test and raising the negligence threshold to 1% rather than 0.5%. The rule also allows some flexibility for states to develop testing methods that take into account variables such as regional environmental factors.
The U.K. Department for Environment, Food & Rural Affairs (Defra) has opened a consultation on the regulation of genetic technologies in food. "It mainly focuses on the regulation of gene edited (GE) organisms possessing genetic changes which could have been introduced by traditional breeding," the consultation states. "[W]e are using this opportunity to engage separately and start gathering views on the wider regulatory framework governing genetically modified organisms (GMOs)." "EU legislation controlling the use of GMOs was retained in the UK at the end of the transition period (after 31 December 2020). This retained legislation requires that all GE organisms are classified as GMOs irrespective of whether they could be produced by traditional breeding methods[1]. Defra’s view is that organisms produced by GE or by other genetic technologies should not be regulated as GMOs if they could have been produced by traditional breeding methods. Leaving the EU provides an opportunity…
President Biden has withdrawn an executive order that would have allowed 25% faster processing speeds on poultry lines in meatpacking plants. The policy change would have allowed plants to process 175 slaughtered birds per minute, up from 140, in accordance with a proposal by the U.S. Department of Agriculture's Food Safety and Inspection Service. Criticism of the proposal came from advocacy groups that argued the faster speeds with endanger workers, especially after a study purportedly showed that plants with waivers allowing the faster speeds had higher COVID-19 transmission rates.
A D.C. Superior Court has denied Smithfield Foods' motion to dismiss a lawsuit alleging it misleads consumers by marketing its products as "safer pork." Organic Consumers Assn. v. Smithfield Foods Inc., No. 2020 CA 2566 B (D.C. Super. Ct., entered December 14, 2020). The lawsuit, filed by the Organic Consumers Association (OCA), alleged that Smithfield "employs production practices that result in less-safe conditions, effects, and Products, including the routine preventative use of medically important antibiotics, crowded conditions, the use of potentially carcinogenic drugs, and rapid slaughter methods." The court disagreed with Smithfield's argument that the marketing statements were puffery or "too general to be actionable," finding that the statements Smithfield made about its safety were specific. Further, OCA's "allegations about consumer understanding are plausible," the court held, because the complaint cited sources "stating that food safety is an issue of significant concern to consumers" and studies showing "that a 'reasonable consumer'…
A plaintiff has filed a putative class action alleging Dietz & Watson Inc. misleads consumers by naming its product "Smoked Provolone Cheese" when the cheese's smoky flavor comes from "smoke flavor" rather than "slow cooking over a fire of wood chips." Jones v. Dietz & Watson Inc., No. 20-6018 (E.D.N.Y., filed December 9, 2020). The plaintiff alleges the cheese should be labeled "Natural Smoke Flavored Provolone Cheese" under U.S. Food and Drug Administration regulations on characterizing flavors. "Even if consumers were to view the ingredient list, a reasonable consumer would have no reason to know that listing 'smoke flavor' forecloses the possibility the Product was also subject to some smoking," the complaint asserts. "However, the Product has not undergone any real smoking, which is deceptive and misleading to consumers." The plaintiff alleges violations of New York's consumer-protection statutes, the Magnuson-Moss Warranty Act, fraud and negligent misrepresentation.
The U.S. Food and Drug Administration (FDA) has announced the approval of GalSafe pigs, which have a "first-of-its-kind intentional genomic alteration (IGA)," for use in food. "This is the first IGA in an animal that the FDA has approved for both human food consumption and as a source for potential therapeutic uses," the announcement states. "The IGA in GalSafe pigs is intended to eliminate alpha-gal sugar on the surface of the pigs’ cells. People with Alpha-gal syndrome (AGS) may have mild to severe allergic reactions to alpha-gal sugar found in red meat (e.g., beef, pork, and lamb)." FDA reportedly found that "food from Galsafe pigs is safe for the general population to eat" and that the potential impact of the pigs is no greater than from conventional pigs.
In an effort to remove regulations no longer "necessary to ensure that these products meet consumer expectations," the U.S. Food and Drug Administration (FDA) has proposed to revoke the standards of identity and quality for frozen cherry pie and French dressing. "The proposal is part of the FDA’s Nutrition Innovation Strategy," constituent updates on the proposed revocations state. "One of the goals of the NIS is to modernize food standards to maintain the basic nature and nutritional integrity of products while allowing industry flexibility for innovation to produce more healthful foods. The FDA believes it is important to take a fresh look at existing standards of identity in light of marketing trends and the latest nutritional science." The agency's Fall 2020 agenda also indicated an intention to amend the standard of identity for yogurt and revoke the standards of identity for lowfat and nonfat yogurt, but that final rule has…
The U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) has partially granted a petition filed by the Center for Science in the Public Interest (CSPI) about the use of "No Nitrate or Nitrite Added" and "Uncured" on labels for "products that have been processed using any source of nitrates or nitrites." FSIS indicated in its response letter to CSPI that it will issue a rulemaking proposing the regulation of such phrases but noted, "However, rather than requiring disclosure statements about the use of nitrate or nitrites on labels of meat and poultry products, as requested in the petition, FSIS intends to propose to amend and clarify its meat and poultry labeling regulations to establish new definitions for 'Cured' and 'Uncured.' The basis for these proposed changes would be discussed in detail in the proposed rule, which is listed in the Fall 2020 Semiannual Regulatory Agenda, with a tentative…
