The U.S. Court of Appeals for the Second Circuit has denied a plaintiff's appeal aiming to overturn a lower court's dismissal of a lawsuit alleging that Diet Dr Pepper is misleadingly named because it does not cause weight loss. Excevarria v. Dr Pepper Snapple Grp., Inc., No. 18-1492 (2nd Cir., entered April 17, 2019). "Plaintiffs argue that the use of the word 'diet' in Diet Dr Pepper is misleading because it conveys certain promises about the beverage’s usefulness in assisting with weight loss or healthy weight management, when in fact (Plaintiffs allege, based on a number of studies) the aspartame in Diet Dr Pepper likely causes weight gain," the appeals court stated in its brief opinion. "However, even assuming (without deciding) that Plaintiffs are right that a reasonable consumer would understand the word 'diet' to convey promises about weight loss or management, they have still failed to state a claim…
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A New York federal court has dismissed a putative class action alleging that celebrity chef Rachael Ray's brand of dog food, Rachael Ray Nutrish, is misleadingly marketed as "natural" because it contains traces of pesticides. Parks v. Ainsworth Pet Nutrition, LLC, No. 18-6936 (S.D.N.Y., entered April 18, 2019). The court found that the plaintiff could not show that trace amounts of a pesticide would make the marketing of a "natural" product misleading. The plaintiff "asserts that the Products contain trace amounts of glyphosate, but not that the Products are composed of unnatural ingredients," the court found. "Moreover, Plaintiff does not set forth in his complaint the amount of glyphosate in the Products or whether that amount is harmful or innocuous. He argues that '[if] glyphosate is in the Products at any level . . . then the Products cannot be called 'Natural.'' [] But a reasonable consumer would not be…
A plaintiff has filed a putative class action alleging that Mondelez Global's Oreos—marketed as "always made with real cocoa"—are misleadingly marketed because they contain cocoa processed with alkali. Harris v. Mondelez Global LLC, No. 19-2249 (E.D.N.Y., filed April 17, 2019). The complaint describes the alkali processing method, which "reduces the acidity of cocoa powder," "detracting from the 'real cocoa' taste." The plaintiff asserts that the phrase "'always made with real cocoa' is intended to differentiate the cocoa in the Products from other cocoa ingredients bearing the standard cocoa designation, i.e., 'cocoa' or 'cocoa processed with alkali,' and implies the cocoa present in the Products is nutritionally and organoleptically superior." Further, "[n]o reasonable consumer would expect the cocoa in the Products to have been made with and contain alkalis because 'real,' in modifying the word 'cocoa,' represents the cocoa powder is included in its most simplified form." The plaintiff seeks class…
The U.S. Food and Drug Administration (FDA) has issued draft guidance allowing food manufacturers to exclude allulose when calculating the amount of added sugars a product contains. Allulose is "approximately 70 percent as sweet as sucrose," according to a comment FDA received, and "does not have the metabolic properties of fructose or other sugars and does not contribute calories or raise blood sugar levels like other sugars." FDA has proposed to "exercise enforcement discretion for the exclusion of allulose from the amount of 'Total Sugars' and 'Added Sugars' declared on the label and the use of a general factor of 0.4 calories per gram for allulose when determining 'Calories' on the Nutrition and Supplement Facts labels pending review of the issues in a rulemaking." Comments on the draft guidance will be accepted until June 17, 2019.
Consumer Reports has published an article detailing its purported findings from a series of tests on several brands of bottled water, reportedly finding some bottles with levels of arsenic that could be "potentially dangerous to drink over extended periods of time." Most samples apparently tested below the federal limit of 10 parts per billion (ppb); Peñafiel, a product imported from Mexico, tested higher than 10 ppb but has reportedly been pulled from the market to resolve the issue. Consumer Reports also identified brands that sell water containing levels of arsenic that are legal but above the organization's recommended limit of 3 ppb.
The U.S. Food and Drug Administration (FDA) has issued draft guidance on initiating voluntary recalls of food and other agency-regulated products. The guidance discusses (i) "what preparations firms in a distribution chain, including manufacturers and distributors, should consider making to establish recall initiation procedures"; (ii) "preparations firm in the distribution channel should consider making to ensure timely responses to a recall communication"; and (iii) "how FDA assists firms with carrying out their recall responsibilities to protect the public health from distributed products in violation of the Federal Food, Drug, and Cosmetic Act (FD&C Act) and other laws administered by the FDA." Comments on the draft guidance will be accepted until June 24, 2019.
In-house and outside counsel joined representatives from the U.S. Food and Drug Administration (FDA), Department of Agriculture (USDA) and Federal Trade Commission (FTC) in Chicago for the American Conference Institute’s Food Law Conference on April 9-11, 2019. The conference covered a number of key topics, including the impact of Food Safety Modernization Act (FSMA) implementation, changes to California's Safe Drinking Water and Toxic Enforcement Act (Prop. 65) and emerging issues such as hemp and cannabis ingredients, blockchain and 3D-printed foods. Shook Partner Lindsey Heinz presented with Matt Dornauer, general counsel for Phusion Projects, LLC, on how to navigate the unique challenges of marketing and advertising through social media. Heinz and Dornauer discussed a wide array of issues, including what food and beverage companies can glean from FDA social media guidance in the pharma space, how to draft a comprehensive social media policy and overarching best practices to ensure that companies…
The U.S. Food and Drug Administration's Food Safety and Inspection Service (FSIS) has issued a press release responding to The Washington Post's reporting on an impending change to pork plant inspections. "FSIS is appalled at The Washington Post’s poor attempt at explaining a proposal to modernize inspection," the press release states. "The Post’s decision to continue to parrot arguments that are devoid of factual and scientific evidence only serves to further the personal agenda of special interest groups that have nothing to do with ensuring food safety. Despite FSIS spending countless hours responding to The Post and providing clarification about the proposed rule, The Post chose to ignore the information and went with an already formed opinion and headline." FSIS argues that the article was "deliberately misleading" on several points and lists 11 rebuttals for statements made in the Post article, including the assertion that the pork industry "soon will…
The Physicians Committee for Responsible Medicine has filed an Administrative Procedure Act lawsuit seeking to compel the U.S. Department of Agriculture (USDA) to respond to the organization's petition urging the agency to regulate feces as an adulterant under the Federal Meat Inspection Act and the Poultry Products Inspection Act. Physicians Comm. for Responsible Med. v. USDA, No. 19-1069 (D.D.C., filed April 16, 2019). Physicians Committee's 2013 petition "asserted that meat and chicken that is contaminated with feces regularly passes USDA inspection," according to the complaint. "The risk of fecal contamination has increased in the six years since the Physicians Committee petitioned USDA," the organization argues. Under the system implemented in 2014, one USDA inspector is assigned to a slaughter line, apparently correlating with higher failure rates for Salmonella—"a bacteria found in feces"—during inspections. "Despite the passage of six years, USDA has not shared its determinations regarding the actions requested by…
A D.C. court has granted summary judgment in favor of Hormel Foods Corp. in a lawsuit alleging that the company misleads consumers into believing that its products "are from animals that are humanely raised and not 'factory-farmed' and that its products do not contain preservatives or nitrites that are not from natural sources." Animal Legal Defense Fund v. Hormel Foods Corp., No. 2016 CA 004744 (D.C. Super. Ct., entered April 8, 2019). The court held that the Animal Legal Defense Fund's (ALDF's) claims were preempted, finding that applying the Washington, D.C., consumer-protection statute "to prohibit the use of terms that [the U.S. Department of Agriculture (USDA)] approved would stand as an obstacle to the accomplishment of Congress' purposes for consistent regulation of labeling meat and poultry products." "Federal law regulates labeling so that consumers can use labels as the authoritative source of information about a product's ingredients, and if a…
