The U.S. Patent and Trademark Office (USPTO) has issued a final rule that incorporates certain changes that took effect in January 2012 under the Nice Agreement Concerning the Classification of Goods and Services for the Purpose of the Registration of Marks, to which the United States is a signatory. Among other matters, (i) Class 5 is changed from “dietetic substances adapted for medical use” to “dietary food and substances adapted for medical use”; and (ii) Class 32 is change from “non-alcoholic drinks; fruit drinks” to “non-alcoholic beverages; fruit beverages.” USPTO’s classification of goods and services under the Trademark Act is codified at 37 CFR part 6. See Federal Register, August 9, 2012.
Category Archives Issue
The U.S. Department of Agriculture (USDA) has announced an August 27-28, 2012, meeting of its Advisory Committee on Biotechnology and 21st Century Agriculture (AC21) in Washington, D.C. USDA Secretary Tom Vilsack has specifically asked the committee to report on the types of compensation mechanisms that could be used “to address economic losses by farmers in which the value of their crop is reduced by the presence of GE [genetically engineered] material(s).” The committee will also discuss eligibility standards for triggering these mechanisms as well as other actions that may be appropriate “to bolster or facilitate coexistence among different agricultural systems in the United States.” According to USDA, “AC21 consists of members representing the biotechnology industry, the organic food industry, farming communities, the seed industry, consumer and community development groups, as well as academic researchers and a medical doctor.” Members of the public who wish to the attend the meeting must register…
U.S. Senators Kay Hagan (D-N.C.) and Saxby Chambliss (R-Ga.) recently wrote a letter to U.S. Environmental Protection Agency (EPA) Administrator Lisa Jackson, asking the agency to use its waiver authority “to adjust the corn grain-ethanol mandate of the Renewable Fuel Standards (RFS)” in light of ongoing drought conditions. Signed by 26 senators, the bipartisan letter notes that the U.S. Department of Agriculture has already rated 50 percent of the nation’s corn crop as poor or very poor while “stressful weather conditions continue to push corn yields lower and prices upward.” The signatories have thus urged EPA to employ some of the “safety valves” built into the Energy Independence and Security Act of 2007 “that enable the agency to adjust the RFS in the event of inadequate supplies or to prevent economic harm to the country, a region, or a state.” “With record droughts across the United States causing corn supplies…
A California resident has filed a putative class action against Smart Balance, Inc., alleging that the 100 mg of plant sterols in a single serving of the company’s spreadable butter products do not, as advertised, block the absorption of dietary cholesterol. Aguilar v. Smart Balance, Inc., No. 12-1862 (S.D. Cal., filed July 27, 2012). The named plaintiff seeks to represent either a multistate class of consumers or a California class. According to the complaint, studies show that, to reduce cholesterol, “a minimum of 0.8 grams, and preferably 2 grams, of plant sterols must be consumed daily.” Given the purportedly modest amount of sterols in the defendants’ products, the plaintiff claims that half a container would need to be consumed in one day “to realize even the minimum amount of cholesterol reduction benefit.” The plaintiff claims that she purchased the product relying on the cholesterol benefit representations and did not get…
A company that supplies specialty ingredients such as vitamins, chemicals and carotenoids to food producers has sued one of its suppliers, alleging that the company was forced to recall from customers more than 33,000 pounds of chromium amino acid chelate after learning that it contained a milk allergen. DSM Nutritional Prods., LLC v. Triarco Indus., Inc., No. C1928-12 (N.J. Super Ct., Morris Cty., filed July 26, 2012). The plaintiff also allegedly reported the matter to the Food and Drug Administration through the Reportable Food Registry. According to the complaint, in 2009, the defendant completed a questionnaire designed to inform the plaintiff “of the existence of any allergens or their derivatives contained in the product” sold to the plaintiff. “Not until July 27, 2010,” however, “did Defendant correctly label the product as containing a hydrolyzed milk protein, thus advising [the plaintiff] that Defendant’s product contained a milk allergen.” Alleging breach of contract…
Turtle Island Restoration Network and the Center for Biological Diversity have filed a complaint for declaratory and injunctive relief in a federal court in California against the Food and Drug Administration (FDA) to force the agency to act on their June 2011 petition seeking to reduce the allowable level of mercury in seafood. Turtle Island Restoration Network v. Hamburg, No. 12-03884 (N.D. Cal., filed July 25, 2012). The organizations claim that while FDA had 180 days, or until December 17, 2011, to respond to the petition, “[t]o date, FDA has neither granted nor denied the petition and has taken no action to reduce human exposure to mercury from commercial fish.” They request a court order declaring that FDA has violated the Administrative Procedure Act and requiring the agency to issue a decision on their petition within 30 days. The plaintiffs contend that FDA’s current action level for mercury in seafood…
The Center for Science in the Public Interest (CSPI) has filed a putative class action on behalf of two named California residents against General Mills alleging that its use of “All Natural,” “Natural,” and “100% Natural” product representations on its Nature Valley® food products is deceptive because they contain high-fructose corn syrup (HFCS), high-maltose corn syrup, and maltodextrin and rice maltodextrin. Janney v. General Mills, No. 12-3919 (N.D. Cal., filed July 26, 2012). According to the complaint, these ingredients are not “minimally processed,” yet the defendant purportedly “takes wrongful advantage of consumers’ strong preference for foods made entirely of natural ingredients” with words and images in its marketing and on product labels evocative of the outdoors and nature. While one of the named plaintiffs purchased “natural” food for a daughter with type 1 diabetes and the other sought an all-natural diet for a daughter with ADHD, they do not allege personal…
A federal court in New Jersey has rejected the claims of objectors questioning class notice and most of the settlement terms in a deal which resolves allegations that Ferrero USA, Inc., the company that makes the hazelnut spread Nutella®, misled consumers about the nutritive value of its product; while the court entered an order finally approving the settlement, it did reduce counsel fees by $1.25 million. In re Nutella Mktg. & Sales Practices Litig., No. 11-1086 (D.N.J., decided July 31, 2012). Additional information about the objectors’ challenge appears in Issue 444 of this Update. Counsel had sought $3.75 million in fees, an amount the objectors claimed was unwarranted. According to the court, the reduced fees represent 25 percent of the value of the gross settlement fund, injunctive relief, costs and the incentive award to the class representatives.
A federal court in Idaho has denied all pending motions to dismiss in litigation brought by direct and indirect potato purchasers who allege that the defendants violated antitrust laws by agreeing to reduce the supply of potatoes in the United States to increase their price. In re Fresh & Process Potatoes Antitrust Litig., MDL No. 10-2186 (D. Idaho, filed July 27, 2012). The plaintiffs contend that the defendants formed cooperatives which agreed to limit crop acreage and paid farmers to destroy existing potatoes or refrain from growing additional potatoes. Assessing the allegations in the plaintiffs’ amended complaint, the court determined that they met the plausibility pleading standard required under the U.S. Supreme Court’s Twombly and Iqbal rulings.
While a federal court in California has dismissed warranty claims filed under federal law against an ice cream manufacturer sued for allegedly misleading consumers by labeling its products with the phrases “All Natural Flavors” and “All Natural Ice Cream,” most of the plaintiffs’ state law-based claims will proceed. Astiana v. Dreyer’s Grand Ice Cream, Inc., No. 11-2910; Rutledge-Muhs v. Dreyer’s Grand Ice Cream, Inc., No. 11-3164 (N.D. Cal., order entered July 20, 2012). The plaintiffs allege that Dreyer’s and Edy’s ice cream products should not bear labels stating “All Natural Flavors” because they contain between one and five artificial and/or synthetic ingredients, and the company’s Haagen-Dazs ice cream products should not bear labels stating “All Natural Ice Cream” because they contain cocoa processed using a synthetic and/or artificial alkalizing agent. They allege violation of written warranty under the Magnuson-Moss Warranty Act; common law fraud; unlawful, unfair and fraudulent business practices and false…
