The European Union has requested a World Trade Organization consultation with the United States to address the imposition of tariffs on Spanish olives in August 2018. The United States reportedly applied countervailing and anti-dumping tariffs of 34.75 percent to the import of Spanish black olives on the grounds that Spanish growers receive benefits from the EU that are unavailable to other growers, such as those in California.
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An en banc U.S. Court of Appeals for the Ninth Circuit has held that a district court abused its discretion by denying the American Beverage Association and the California Retailers Association a preliminary injunction that would prevent San Francisco’s ordinance regulating advertisements for sugar-sweetened beverages (SSBs) from taking effect. Am. Beverage Ass’n v. City & Cty. Of San Francisco, No. 16-16072 (9th Cir., entered January 31, 2019). The court found that the amount of space required for the mandatory health disclosure on SSB ads—20 percent—“is not justified and is unduly burdensome when balanced against its likely burden on protected speech.” The Supreme Court “made clear… that a government-compelled disclosure that imposes an undue burden fails for that reason alone,” the Ninth Circuit stated, before noting that the “remaining factors of the preliminary injunction test also favor an injunction. Because Plaintiffs have a colorable First Amendment claim, they have demonstrated that…
Ghirardelli and Russell Stover have agreed to pay $750,000 to settle allegations brought by the district attorneys of several California counties, according to a Yolo County press release. The California counties alleged that the chocolate companies “packaged certain chocolate products in oversized containers which can give consumers the misleading appearance that they are purchasing more product than they are actually receiving.” In addition, Ghirardelli allegedly misrepresented the amount of cocoa in one of its products. “Consumers have the right to expect full value in their purchases and compliance with packaging requirements is an integral part of the process,” the Yolo County district attorney is quoted as saying. “We will continue to aggressively monitor businesses and prosecute those that violate consumer protection laws.”
Two consumers have alleged that National Beverage Corporation misleads buyers of LaCroix sparkling water because it advertises the products as “all natural” and “100% natural” while they contain flavors composed of “between 36% and 98% synthetic ingredients.” Graham v. Nat’l Beverage Corp., No. 19-0873 (S.D.N.Y., filed January 29, 2019). The complaint cites the Center for Applied Isotope Studies at the University of Georgia, which uses “compound specific stable isotope analysis [] and gas chromatography isotope ratio mass spectrometry to generate multi-component, multi-element data for the enhanced characterization of organic chemical processes and source validation.” The plaintiffs seek class certification, injunctions, damages and attorney’s fees for alleged violations of New York consumer-protection law, unjust enrichment and breach of warranties.
A consumer has filed a putative class action alleging that Barlean’s Organic Oils misrepresents the health benefits of its coconut oils because “coconut oil is actually inherently unhealthy, and a less healthy option” when compared to “butter and various cooking oils.” Testone v. Barlean’s Organic Oils LLC, No. 19-0169 (S.D. Cal., filed January 24, 2019). The complaint asserts that coconut oil—“which is approximately 90 percent saturated fat”—increases the risk of cardiovascular heart disease and stroke, in contrast with representations on the Barlean’s website that its product is “Nature’s Most Versatile Superfood” that is “cold pressed fresh for your vibrant health.” The plaintiff alleges violations of California’s and New York’s consumer-protection statutes and seeks class certification, a corrective advertising campaign, restitution, damages and attorney’s fees.
Shook Partner Frank Cruz-Alvarez and Associate Rachel Forman have authored an article for WLF Legal Pulse examining a California federal court's decision to certify a class of consumers alleging they were misled by Ocean Spray Cranberries Inc.'s marketing claim that its products contain no artificial flavoring despite containing malic and fumaric acids. The decision has "thrown the doors open for class certification in food-labeling cases," Cruz-Alvarez and Forman write. "Although packaged-food businesses have responded to years of class-action lawsuits with labeling modifications that make their products less-inviting targets, decisions like Hilsley show that plaintiffs’ lawyers are equally creative and determined to keep the claims coming," the authors conclude. "This is especially true for products labeled as 'natural' or free of artificial ingredients when those products arguably do contain synthetic ingredients, regardless of their purpose. That new angle might just be enough to survive something as rigorous as the class-certification analysis…
A consumer has filed a putative class action alleging Mondelez Global LLC misleads consumers by making its Honey Maid graham crackers primarily with white flour rather than graham flour. Kennedy v. Mondelez Global LLC, No. 19-0302 (E.D.N.Y., filed January 15, 2019). The complaint alleges that Honey Maid products are marketed as "graham crackers" while the ingredients panel lists "unbleached enriched flour" first and "graham flour" second. The plaintiff cites Dictionary.com to assert that consumers expect a "graham cracker" to be "a slightly sweet cracker made of whole wheat flour" and that any cracker made with more white than graham flour cannot be called a graham cracker. The plaintiff seeks class certification, injunctive relief, damages and attorney's fees for an alleged violation of New York consumer-protection law, negligent misrepresentation, fraud, unjust enrichment and breach of warranties.
In a series of tweets, U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb announced that about 200 food investigators—of 550—for the agency's Office of Human and Animal Food Operations have been working during the federal government's partial shutdown, with additional staff possibly "on the way depending on needs." Gottlieb further noted which food operations have continued during the shutdown: (i) "[h]igh-risk domestic food surveillance inspections"; (ii) "foodborne illness surveillance and outbreak investigations"; (iii) "[e]xecution of high-risk food recalls"; (iv) "[i]nspection of foreign food facilities"; and (v) "[s]ampling of imported food samples (including sampling for antibiotic residue contamination and decomposition analysis." High-risk foods reportedly include seafood, dairy, fresh produce, spices, eggs, sandwiches and infant formula.
A Nebraska state senator has withdrawn a proposed bill to define "meat" as an animal-derived product. Sen. Carol Blood submitted the bill to protect the state's meat industry, according to the Washington Post. "All I'm asking for is truth in advertising. It's clear that meat comes from livestock, and livestock is our livelihood in Nebraska," Blood reportedly said. A motion to withdraw the bill was filed January 23, 2019, and Blood did not comment on the withdrawal.
The Center for Food Safety (CFS) has filed a petition recommending that the U.S. Department of Agriculture (USDA) prohibit the use of hydroponic agriculture in the cultivation of organic food. "Hydroponic production systems are fundamentally different from organic production systems as defined by federal law—they do not promote soil health or conserve biodiversity," the petition states. "Organic certification of hydroponics thus misleads consumers, because these products are indistinguishable from truly organically produced products with the same label." CFS argues that organic production by definition must include soil, citing the Organic Foods Production Act and noting that the statute and the National Organic Program's final rule implementing it do not include the words "hydroponic" or "soilless." The petition urges USDA to amend existing regulations to expressly prohibit hydroponic systems in organic production and revoke existing organic certifications issued to hydroponic operations.
