A consumer has filed a putative class action alleging that Tropicana Manufacturing Co. misrepresents its orange juice as "natural" because it contains a variation of malic acid that can be used as an artificial flavoring ingredient. Johnson v. Tropicana Mfg. Co. Inc., No. 19-1164 (S.D. Cal., filed June 20, 2019). The complaint, echoing similar actions filed by the same plaintiff's firm against other companies, alleges that the ingredient "malic acid" on the product's ingredient list is not the naturally occurring l-malic acid but rather d-l malic acid, which "is manufactured in petrochemical plants from benzene or butane—components of gasoline and lighter fluid, respectively—through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts." The plaintiff alleges violations of California's consumer-protection laws and seeks class certification, restitution, damages, corrective advertising and attorney's fees.
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The U.S. Food and Drug Administration (FDA) has issued an update for consumers explaining its investigations into cannabis and cannabis-derived compounds, including cannabidiol (CBD). The agency indicates that it is "working to learn more about the safety of CBD and CBD products," specifically: (i) "[t]he effects CBD could cause in the body, such as toxicity to the liver, when someone ingests CBD regularly over a long period of time"; (ii) "[t]he cumulative exposure to CBD if people access it across a broad range of consumer products"; (iii) "[t]he effects of CBD on special populations (e.g., the elderly, children, adolescents, pregnant and lactating women) or types of animals (e.g., species, breed, or class)"; and (iv) "[t]he safety of CBD use in animals (e.g., species, breed, or class) including pets." FDA also advises that "unapproved CBD drug products have not been subject to FDA review as part of the drug approval process,…
The U.S. Food and Drug Administration (FDA) has announced that it will not object to claims that "consuming eicosapentaenoic acid (EPA) and docosahexaenoic (DHA) omega-3 fatty acids in food or dietary supplements may reduce the risk of hypertension and coronary heart disease." FDA's research on the claim included reviewing more than 700 studies and 22 public comments submitted on the subject. The approved qualified health claims include that EPA and DHA "may help lower blood pressure" and "reduce the risk for hypertension" but also reference that "FDA has concluded that the evidence is inconsistent and inconclusive."
U.K. Environment Secretary Michael Gove has reportedly announced that a law requiring a full listing of ingredients on prepackaged food will take effect by the summer of 2021 and will include a two-year implementation period allowing businesses to adapt. "Natasha's Law" bears the name of a 15-year-old who died from anaphylaxis after an allergic reaction caused by consumption of a Pret A Manger baguette. Current regulations require that prepackaged food made on-site must be displayed near a sign prompting customers to ask about allergens.
U.S. Sen. Dick Durbin (D-Ill.) and Rep. Rosa DeLauro (D-Conn.) have introduced the Safe Food Act of 2019, "which would create a single, independent food safety agency." In addition, the proposed law would "[r]equire full food traceability to better identify sources of outbreaks" and "[s]trengthen oversight of foreign food facilities and improve food import inspections." The proposal echoes similar legislation the pair proposed in 1999.
The National Advertising Division (NAD) has recommended that Oatly Inc. discontinue marketing representations that its oat milks contain "no added sugars." According to NAD's summary, the challenger argued that "the hydrolysis process, which turns oats into oatmilk, creates sugars 'in situ' as the oats are broken down into smaller components." NAD considered whether the question fell under its jurisdiction, noting that information appearing in the Nutrition Facts Panel would be governed by the U.S. Food and Drug Administration (FDA). "Without taking a position on whether Oatly’s Nutrition Facts Panels are in compliance with FDA regulations, NAD recommended that Oatly not re-post or restate the 'added sugars' line of the Nutrition Facts Panel in its advertising, but noted that nothing in the decision prevents Oatly from using the 'added sugars' line of the Nutrition Facts Panel in a context that is not advertising, such as on product packaging for the purpose…
The cannabis industry, including marijuana, hemp and cannabidiol (CBD), is complex and rapidly evolving. Shook Partners Mike Barnett, Lindsey Heinz, and Jim Muehlberger lead a discussion about how the legal landscape is changing for this burgeoning area and why it matters to the food and beverage industry. The presentation covers the differences between marijuana and industrial hemp; how the 2018 Farm Bill altered the current federal regulatory landscape; the impact on food, food supplement and consumer product industries; and the different approaches states have taken in the absence of Food and Drug Administration guidance. View the webinar >>
Shook Partner Jim Muehlberger has participated in a Corporate Disputes roundtable on food and beverage litigation. He answers questions on the increase in litigation in the sector and what companies can do to assess their liabilities when facing a lawsuit. “Food and beverage putative class action filings show no signs of letting up,” Muehlberger explains. “In the U.S., the FDA has indicated that it is investigating several issues that could prompt plaintiff’s attorneys to pursue new lawsuits, including the use of animal-associated terms to apply to plant-derived products such as ‘almond milk’ or ‘veggie burger.’” He also suggests that the introduction of cannabidiol into the food and beverage industry—if the agency ultimately permits its use—may trigger a number of lawsuits related to marketing claims and labeling, among other issues. “Outside counsel can help food and beverage manufacturers comply with governmental agency rules and labelling guidelines before litigation is contemplated,” Muehlberger…
A California federal court has entered a consent decree compelling the U.S. Food and Drug Administration (FDA) to designate a list of high-risk foods as required by the Food Safety Modernization Act. Ctr. for Food Safety v. Azar, No. 18-6299 (N.D. Cal., entered June 7, 2019). The decree is the result of a lawsuit brought by the Center for Food Safety and Center for Environmental Health seeking to compel the agency to promulgate a list of "high-risk foods for which additional recordkeeping requirements are appropriate and necessary to protect the public health" as well as host the list on the FDA website. The decree lists deadlines for FDA to meet—including September 8, 2020, for the designation—but allows the agency to seek extensions if it needs one "despite FDA's best efforts (meaning commitment of agency time, money, energy, and resources that FDA reasonably anticipates will result in meeting the schedule in…
A New Jersey federal court has denied class certification to a plaintiff challenging Tropicana's marketing representations of its juice as "pure" and "natural." In re Tropicana Orange Juice Mktg. & Sales Practices Litig., No. 11-7382 (D.N.J., entered June 19, 2019). The court first denied certification for a New York class because the plaintiff only purchased Tropicana in California, then it turned to the requirement of predominance. "Plaintiff has not demonstrated that a uniform misrepresentation was made to the class sufficient to satisfy predominance as to the '100% pure and natural orange juice,' '100% pure,' '100% natural,' '100% juice' 'fresh,' 'grove to glass,' 'squeezed from fresh oranges,' 'straight-from-the-orange,' and Orange/Straw labels," the court found. "[T]he Court would be required to perform an individualized inquiry into each product purchased to determine what combinations of labels were visible before determining whether that combination is deceiving to a reasonable consumer. These variations are the…
