A federal court in California has preliminarily approved the settlement of class claims that Quaker Oats violated consumer protection laws by labeling its snack bars and instant cereal products as “wholesome” with “0g Trans Fat” when they actually contain “unhealthy” ingredients, such as partially hydrogenated vegetable oils (PHOs). In re Quaker Oats Labeling Litig., No. 10-0502 (N.D. Cal., San Francisco Div., order entered February 12, 2014). Under the proposed settlement, Quaker Oats, which admits no wrongdoing, has agreed to remove PHOs from products that contain them by December 31, 2015, and will not reintroduce PHOs into these products for 10 years. The company has also agreed to not introduce PHOs into products such as Quaker Chewy bars or Instant Quaker Oatmeal products that do not contain them for 10 years, and, by December 31, 2014, will cease stating on product labels “contains a dietarily insignificant amount of trans fat” for…
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A federal court in California has denied the plaintiff’s request to certify a class of those who purchased ZonePerfect Nutrition bars relying on allegedly deceptive labels representing the products as “All Natural.” Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907 (N.D. Cal., order entered February 13, 2014). The court found that the plaintiff set forth sufficient evidence to establish that she had standing for the purpose of class certification, despite paying more for other nutrition bars and sometimes purchasing non-natural products. Because the defendant “overwhelmingly sells to retailers, not directly to consumers, and . . . there are no records identifying any but a small fraction of consumers who have purchased ZonePerfect bars in the last several years,” the court, however, agreed with the defendant that neither the class nor the quantity of nutrition bars each member purchased were ascertainable other than by affidavit. As to ascertainability, the court noted a…
A National Labor Relations Board (NLRB) judge has determined that Sprouts Farmers Market violated federal labor law by requiring employees to sign mutual binding arbitration agreements (MAAs) that preclude class or collective-action claims in arbitration or otherwise as a condition of hiring and continued employment. SF Mkts, LLC d/b/a Sprouts Farmers Mkt., Nos. 21-CA- 099065, -104677 (NLRB Div. of Judges, Atlanta Branch Ofc., decided February 18, 2014). The issue arose from two cases: in the first, Jana Mestanek filed wage-andhour claims against the employer in court, and it sought to compel arbitration under the MAA to which she had agreed; in the second, Laura Christensen was fired for refusing to sign an acknowledgement of an employee handbook supplement agreeing to the terms of a revised MAA. At issue was whether D.R. Horton, Inc. (Horton), 357 NLRB No. 184 (2012), enfd. in part, denied in part, 737 F.3d 344 (5th Cir.…
The U.S. Food and Drug Administration (FDA) has entered a consent decree with the Center for Food Safety, which sued the agency over its alleged failure to comply with implementation rulemaking deadlines in the Food Safety Modernization Act (FSMA). Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., decree filed February 20, 2014). Under the agreement, FDA will withdraw its Ninth Circuit appeal and will comply with the following timeline for the adoption of final rules: (i) Preventive Controls for Human Food and Preventive Controls for Animal Food—August 30, 2015; (ii) Foreign Supplier Verification Program, Produce Safety Standards, and Accreditation of Third Party Auditors—October 31, 2015; (iii) Sanitary Transport of Food and Feed—March 31, 2016; and (iv) Intentional Contamination— May 31, 2016. The deadlines may be extended by written agreement of the parties and court approval if “FDA believes good cause exists to seek an extension.” If agreement is…
A federal court in California has dismissed with prejudice the third amended complaint filed by named plaintiffs on behalf of a putative class of purchasers of Chobani Greek Yogurt products, alleging violations of state consumer protection laws because the products were mislabeled under federal law by listing evaporated cane juice (ECJ), instead of sugar, as an ingredient and stating that the yogurts contain only natural ingredients, when they actually contain fruit and vegetable juice—purportedly “highly processed unnatural substances”—as well as turmeric for color. Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal., decided February 20, 2014). The court agreed with Chobani that the plaintiffs failed to sufficiently allege reliance or to plead fraud with sufficient particularity and thus lacked standing to pursue their claims under California’s Unfair Competition Law (UCL), False Advertising Law and Consumers Legal Remedies Act. Apparently annoyed that the plaintiffs had been given numerous opportunities to cure pleading…
The Consumer Advocacy Group, Inc. has filed a series of Proposition 65 (Prop. 65) 60-day notices since December 2013 against supermarkets and rice companies in California, Texas and Taiwan, alleging violations of the law for failure to warn consumers that their rice products contain arsenic (inorganic arsenic compounds), known to the state to “cause both cancer and reproductive toxicity.” The most recent notice was filed February 17, 2014. Under Prop. 65, private citizen enforcers must notify the alleged violator and local prosecuting authorities of their intent to sue so that the alleged violator has the opportunity to correct any alleged violation and local district attorneys have the opportunity to bring government action. The first in this series of notices, brought against Far West Rice, Inc., also alleged that the company’s rice contained lead. Issue 514
California State Senator Bill Monning (D-Carmel) has introduced legislation (SB 1000) that would require all sugar-sweetened beverages (SSBs) containing more than 75 calories per 12-ounce serving to carry safety warnings. Co-sponsored by the California Center for Public Health Advocacy, the Sugar-Sweetened Beverage Safety Warning Act would direct manufacturers, distributors and retailers to place the following notice on sealed containers, multipacks and vending machines, as well as any premises where SSBs are sold in unsealed containers: “STATE OF CALIFORNIA SAFETY WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.” The bill would also mandate the two-year retention of business records pertaining to the distribution, purchase or sale of SSBs as part of a statewide effort “to determine the quantity and type of sugar-sweetened beverages distributed, purchased or sold.” “When the science is this conclusive, the State of California has a responsibility to take steps to protect consumers,”…
The U.K. Advertising Standards Authority (ASA) has ruled that an advertisement for a range of lactose-free products made “sufficiently clear that the Lactofree products were not suitable for dairy allergy sufferers but were suitable for those intolerant to lactose.” Responding to a complaint alleging that the ad failed to adequately differentiate between lactose intolerance and dairy allergy, Arla Foods Ltd. reportedly noted that its TV commercial included an on-screen footnote stipulating that the products displayed were “Not suitable for milk allergy sufferers,” and that consumers in doubt should consult their physician. Warning that the ad’s voice-over—“Listen up hedgehogs, you’re not intolerant to dairy, you’re just intolerant to lactose, the sugars in dairy”—could be misunderstood as a stand-alone statement, ASA nevertheless agreed with Arla’s position, dismissing the complaint on the ground that the on-screen text not only provided a clear reference to milk allergy, but also instructed consumers to “Search Lactofree”…
The U.K. Food Standards Agency (FSA) has requested public comments on a novel foods application submitted by a Swiss company seeking permission to use algal oil in its food products. The company suggests in its application that the oil, extracted from a newly isolated strain of microalgae, is a rich source of omega-3 fatty acid and proposes to use it as a source of the fatty acid in infant formula. The omega-3 fatty acid currently used in infant formula is derived from tuna fish oil or the microalgae, Crypthecodinium cohnii. FSA has also requested public comments on a second application, submitted by Unilever, seeking permission to extend the use of phytosterol esters. Used in the food industry for their cholesterol-lowering properties, phytosterol esters are naturally present at low levels in vegetable oils. This is the third application made by the Unilever for this ingredient. An application for margarines with added…
The European Food Safety Authority’s (EFSA’s) Panel on Dietetic Products, Nutrition and Allergies (NDA) has issued an opinion reiterating a previous conclusion that products with less than 75 mg of caffeine may not bear an increased alertness claim, because most studies found “no effect of caffeine doses of less than 75 mg on various cognitive tasks (simple reaction time, choice reaction time and reaction time on other vigilance tasks).” EFSA has also issued an opinion regarding a request to broaden the approved cholesterol-lowering claim for plant sterol esters. In response to a request to extend conditions of plant sterol esters to an additional food matrix (powder supplements to be diluted in water), the panel reiterated its previous conclusion that, “while plant sterols added to foods such as margarine-type spreads, mayonnaise, salad dressings, and dairy products such as milk, yoghurts, including low-fat yoghurts, and cheese have been shown consistently to lower blood LDL-c…
