The U.S. Court of Appeals for the Seventh Circuit has ruled that the Guinness World Records holder for hacky sack kicks has no valid claims for false advertisement, false endorsement or right of publicity against Wendy’s International Inc., which distributed a hacky sack with a children’s meal and challenged children to break the plaintiff's record. Martin v. Wendy's Int'l Inc., No. 15-6998 (7th Cir., entered March 9, 2018). An Illinois district court previously dismissed the plaintiff’s suit for failure to state a claim. “No reasonable consumer would think [the plaintiff] endorsed the footbags,” the appellate court held, because “Guinness World Records” was printed on both the toy and its packaging and the instructional card identified the plaintiff as the holder of the record rather than an endorser. The court also found that “no reasonable consumer would believe that free toys accompanying kids’ meals to encourage intra-family play were the same…
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The U.S. Department of Agriculture (USDA) has issued a final rule withdrawing the Organic Livestock and Poultry Practices Rule, leaving existing organic regulations in effect. The USDA announcement noted that withdrawal was opposed by “consumers, organic farmers, organic handlers, organizations representing animal welfare, environmental, or farming interests, trade associations, certifying agents and inspectors, and retailers.” In January 2018, a group that included the Union of Concerned Scientists, the Humane Society of the United States, the Natural Resources Defense Council and Whole Foods Market published a full-page ad in The Washington Post expressing their opposition to the withdrawal of the rule.
The U.K. Advertising Standards Authority (ASA) has upheld a complaint that a “100% Natural Ingredients” claim was misleading because the processing of the snack bar's ingredients did not comply with the Food Standards Agency’s (FSA's) criteria for use of the term “natural.” United Biscuits submitted a list of ingredients for its “Go Ahead Goodness” snack bars and asserted that all ingredients were made in a traditional manner. After ASA referred to FSA guidance, it determined that the refining of sunflower oil involves the use of chemical solvents and the process of creating reduced-fat cocoa powder involves the addition of potassium carbonate. Because the FSA guidance says neither the solvent extraction process nor the use of acid or alkali solutions is “in line with consumer expectations of ‘natural,’” ASA ruled that consumers would not consider the ingredients natural and that the advertisement was misleading.
A French bakery owner who opened his storefront seven days a week to accommodate tourist crowds has reportedly been fined €3,000 for violating a regional law mandating that bakeries close at least one day each week. Cédric Vaivre, owner of Boulangerie du Lac, operates the only bakery in his Aube town; during previous summers, he received an exemption to Aube’s prefectural decree allowing him to stay open all week but did not obtain similar permission in 2017. Christian Branle, mayor of Vaivre's town, reportedly told local newspaper L’Est éclair, “In a tourist area, it seems essential that we can have a business open every day during the summer. There is nothing worse than closed shops when there are tourists.” An Aube official reportedly told Vaivre his only solution is to open a second bakery.
A New York federal court has issued a decision seemingly aiming to spur action from the U.S. Food and Drug Administration (FDA), which has purportedly exhibited “no discernible activity” to establish a definition of “natural.” In re Kind LLC “Healthy and All Natural" Litig., No. 15-2645 (S.D.N.Y., entered March 2, 2018). Kind LLC previously filed motions to dismiss or stay claims in multidistrict litigation alleging that its labeling was false and misleading. After allowing stays, the court has indicated that it might proceed with the case without waiting for input from FDA or the U.S. Department of Agriculture (USDA) on the definitions of "healthy" and "natural." The court first found that the consumers' challenge to Kind's claim that its products are made without genetically modified organisms (GMOs) was not preempted by the National Bioengineered Food Disclosure Standard, holding that the relevant state consumer-protection statutes “do not impose a GMO standard or requirement.…
The U.S. Food and Drug Administration (FDA) has proposed to allow the import of raw bivalve molluscan shellfish—including clams, mussels, oysters and scallops—harvested in the Netherlands and Spain by officially acknowledging that the EU food-safety system provides "at least the same level of sanitary protection as the United States' system and is therefore equivalent." The United States and the European Commission have not yet reached equivalence findings on food labeling requirements, maximum levels for food additives, maximum pesticide residue limits, drug residue limits or limits on other contaminants. "These critical determinations are a result of a multi-year, in-depth and cooperative review of shellfish safety systems in the U.S. and the EU, in which technical experts on both sides of the Atlantic have concluded that many of the safety controls in the EU and the U.S are equivalent," FDA Commissioner Scott Gottlieb said in a statement. "Both governments recommended these actions…
Washington State University (WSU) has filed a lawsuit alleging Phytelligence Inc., a WSU horticulture professor's company, sold an apple cultivar to a third party, breaching a propagation contract and infringing the university’s patent. Wash. State Univ. v. Phytelligence Inc., No. 18-0361 (W.D. Wash., filed March 8, 2018). WSU allegedly agreed to allow Phytelligence, which aims to commercialize technology for soilless tissue cultures and ripening chemistries, to propagate the cultivar that produces the Cosmic Crisp apple, WA 38. The complaint alleges that although the contract forbade Phytelligence from transferring or selling the cultivar, the company has sold WA 38 trees to at least one grower. The complaint also asserts that after the cultivar was patented, WSU allowed a nonprofit association to grant licenses for propagation and sale of the trees; Phytelligence allegedly inquired about obtaining a licence but did not apply for one. In addition, Phytelligence previously filed a lawsuit against…
An alert appearing on Yelp that discloses San Francisco health inspection scores may “improve the functioning of markets” and help consumers make “better decisions," but critics reportedly say the posted scores illustrate the failures of the city's food-safety inspection system. Two researchers, who authored “Digitizing Disclosures: The Case of Restaurant Hygiene Scores,” previously helped Yelp design the alert boxes, which appear on pages for about five percent of San Francisco restaurants. According to the San Francisco Chronicle, the alert boxes reduced Yelp users’ “intention to visit” by 21 percent, despite the intention of the alerts to be a system of accountability rather than a warning of deterrence. The Golden Gate Restaurant Association (GGRA) told the Chronicle that the scores are based on routine inspections conducted every six to 18 months. If restaurants earn a low inspection score, they have a week to correct the violations or face closure. “If you see [a low…
An Illinois court has refused to dismiss Gold Medal Products Inc.'s lawsuit alleging that Bell Flavors and Fragrances Inc., with the help of a former Gold Medal employee, misappropriated trade secrets. Gold Medal Prods. Inc. v. Bell Flavors & Fragrances Inc., No. 17-4084 (N.D. Ill., entered March 2, 2018). Gold Medal alleged that its recipe and flavor profile for caramel Glaze Pop, a popcorn coating, are trade secrets, which the defendants allegedly misappropriated when the former employee helped Bell Flavors create a similar product for one of Gold Medal’s competitors. Denying Bell’s motion to dismiss, the court declined to establish whether Gold Medal could prove it owned trade secrets because the record was insufficient to support an analysis. The court rejected Bell’s argument that the recipe and flavor profile are not trade secrets because the ingredients are publicly listed and not patented by Gold Medal. Further, differences in the manufacturing…
BFY Brands, Inc., maker of Our Little Rebellion snacks, faces a potential class action alleging that its one-ounce bags of popcorn contain up to 54 percent slack fill. Reaves v. BFY Brands, Inc., No. 18-2065 (S.D.N.Y., filed March 7, 2018). The plaintiff alleges that he bought bags of Popcorners products—including Smokin’ Jalapeño White Cheddar, Sweet Heat Chili and Sweetly Salted Caramel—but did not receive the amount he expected based on the size of the packages. Claiming violations of New York consumer-protection laws, deceptive and unfair trade practices, false advertising and fraud, the plaintiff seeks class certification, injunctive relief, damages, corrective advertising and attorney’s fees.
