The U.S. Food and Drug Administration (FDA) has issued guidance for industry about the agency’s “current thinking regarding the use of nanomaterials or the application of nanotechnology in food for animals.” According to FDA, the recommendations are intended to assist industry and other stakeholders identify potential safety or regulatory status issues. See Federal Register, August 5, 2015. Issue 574
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Shook Partner Jim Muehlberger and Associate Iain Kennedy have co-authored an article for Law360 about slack-fill regulation and litigation. They note that although some product packaging uses unused space within a bottle or bag for functional purposes—transportation or theft protection, for example—companies have increasingly been targeted for litigation under the Fair Packaging and Labeling Act or U.S. Food and Drug Administration regulations. “All of the legitimate explanations in the world have not deterred some in the plaintiffs’ bar, who have seized upon slack-fill litigation as the newest product packaging and labeling class action du jour,” Muehlberger and Kennedy write. The article summarizes the litigation landscape, including existing putative class actions challenging potato chip, eye drop and deodorant packaging, and notes that plaintiffs usually allege some combination of misrepresentation, fraud, unjust enrichment, breach of warranties and consumer-protection statutory claims. Muehlberger and Kennedy offer ideas for minimizing slack-fill litigation risk, including considering…
Britain’s Institute of Economic Affairs (IEA) has published a report condemning government policies aimed at reducing the consumption of sugar. “Just as fat seems to have been given an amnesty, so sugar is now in the dock,” according to report co-authors Rob Lyons and Christopher Snowdon. “So what exactly is the evidence that sugar is deadly? Can one substance really be responsible for a plethora of chronic diseases? If so, are the calls for action to reduce sugar consumption – including taxes and regulations – justified?” See IEA News Release, July 15, 2015. Issue 573
A group of consumers has filed a putative class action against Perfetti Van Melle USA alleging that the packaging of its Mentos® sugar-free gum contains non-functional slack fill, which amounts to unfair business practices. Hu v. Perfetti Van Melle USA Inc., No. 15-3742 (E.D.N.Y., filed June 26, 2015). The gum is sold as packages of 50 in non-transparent tubes designed to fit into a car’s cup-holder. The complaint alleges that the height of the tube is unnecessary because it could hold approximately 70 pieces of Mentos® gum—leaving the 50 pieces to fill just 71 percent of the tube’s capacity. The 50-piece product’s packaging was “designed by Defendant to give the impression that there is more content than actually packaged,” the complaint asserts, noting that a 15-piece Mentos® gum product does use transparent packaging. The complaint lists two named plaintiffs, residents of New York and California, along with four John Doe…
A consumer has filed a putative class action against Kraft Foods Group Inc. alleging that the company’s fat-free cheese is mislabeled as “natural” because it contains artificial or synthetic ingredients, including “artificial color.” Quiñones-Gonzalez v. Kraft Foods Grp., Inc., No. 15-1892 (D.P.R., filed July 27, 2015). The plaintiff asserts that she relied on the “natural” label to mean that the product, “at a minimum, has no artificial ingredients or characteristics. The public is further led to believe the Product will be healthier, safer and/or produced to a higher standard.” She seeks class certification, an injunction, restitution and damages for allegations of deceptive and unfair marketing and unjust enrichment. A class was certified in June 2015 in a similar lawsuit pending in California federal court; details about the ruling appear in Issue 570 of this Update. Issue 573
The American Beverage Association (ABA) has partnered with California retail and advertising associations to challenge San Francisco ordinances requiring warning labels on sugar-sweetened beverage (SSB) advertisements and prohibiting advertisements of such products on city property. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., filed July 24, 2015). ABA argues that the ordinances violate the First Amendment, which “forbids the City from conscripting private speakers to convey [the city’s viewpoint] while suppressing conflicting viewpoints on this controversial topic.” The complaint first details ad prohibition on city property, including transportation and parks, while it “explicitly permits advertisements that criticize sugar-sweetened beverages or encourage people to stop drinking them. The First Amendment flatly forbids such government-imposed viewpoint discrimination.” The second component of the ordinance prohibits all producers of SSBs “from using their names on any City property to promote any product or any non-charitable event, no matter whether commercial, athletic, musical,…
A California federal court has dismissed claims challenging the trans fats labeling of Nissin Foods Co. Inc.’s Cup Noodles® but allowed to continue allegations that the use of partially hydrogenated oil (PHO) violates California law. Guttmann v. Nissin Foods (U.S.A.) Co., Inc., No. 15-0567 (N.D. Cal., order entered July 15, 2015). The plaintiff challenged the Cup Noodles label, which indicated that the product contained “Trans Fat: 0g,” despite including PHO among its ingredients. Nissin argued that the U.S. Food and Drug Administration (FDA) dictates that the nutritional panel lists an ingredient as zero grams if its actual content is less than one-half of a gram, and Nissin’s compliance with that mandate could not create misleading labels. The court looked to a 2010 case with the same plaintiff challenging Quaker Oats Co.’s label on similar grounds. According to the court, the decision in that case determined that “if the FDA had…
A California federal court has dismissed a putative class action against Maker’s Mark Distillery, Inc. alleging that its whiskey is mislabeled as “handmade” because it uses machines to produce the product. Nowrouzi v. Maker’s Mark Distillery, Inc., No. 14-2885 (S.D. Cal., order entered July 27, 2015). Additional information about the complaint appears in Issue 548 of this Update. The court first denied the distillery’s motion to dismiss on safe harbor grounds, finding that the record is unclear as to whether “handmade” claims fall within the purview of the Tobacco Tax and Trade Bureau. The decision then turned to whether the public would likely be deceived by the “handmade” label. Maker’s Mark cited a May 2015 decision in a similar lawsuit finding that a reasonable person would understand that “handmade” is not meant to indicate that substantial equipment was not used in production, and the court found the reasoning persuasive. “This…
Citing stakeholder concerns over insufficient time to develop meaningful submissions, the U.S. Food and Drug Administration (FDA) has extended by 90 days the period in which to submit comments about the agency’s risk assessment titled, “Multicriteria-Based Ranking Model for Risk Management of Animal Drug Residues in Milk and Milk Products.” FDA seeks suggestions for improving the specific criteria, scoring and weighting scheme; selection of animal drugs evaluated; and transparency of the risk assessment. Electronic or written submissions are now due by October 27, 2015. See Federal Register, July 30, 2015. Issue 573
The U.S. Food and Drug Administration (FDA) has issued draft guidance for industry about the agency’s current thinking regarding the disclosure of small amounts of nutrients and dietary ingredients on nutrition labeling. The document focuses on how the agency intends to use its enforcement discretion when a conflict occurs between compliance with § 101.9(c) and § 101.9(g) of Title 21 of the Code of Federal Regulations such that compliance with both sections is not possible. FDA is also considering whether to revise both sections and, if so, may reportedly amend or withdraw the draft guidance. Those wishing to submit comments on the draft guidance must do so by September 28, 2015. See Federal Register, July 30, 2015. Issue 573
