A federal court in New Jersey has reportedly stayed for six months consumer fraud litigation against the company that makes Arizona Iced Tea® beverages and has asked the Food and Drug Administration (FDA) to determine whether high-fructose corn syrup (HFCS) qualifies as a “natural” ingredient. Coyle v. Hornell Brewing Co., No. 08-2797 (D.N.J., stay order entered June 15, 2010). Claiming that these beverages are deceptively marketed as “100% Natural” despite containing HFCS, the plaintiff alleges violation of the New Jersey Consumer Fraud Act, unjust enrichment and common-law restitution, and breach of express and implied warranties. The court issued the stay rather than dismiss the putative class action outright as requested by the defendants on the basis of the doctrine of primary jurisdiction. According to a news source, the court acknowledged that “categorizing HFCS as either natural or artificial for the purpose of food and beverage labeling does not fall within…
Category Archives U.S. Government and Regulatory Agencies
As part of its ongoing campaign to persuade government authorities to prohibit the use of bisphenol A (BPA), the Natural Resources Defense Council (NRDC) recently filed a lawsuit in the D.C. Circuit Court of Appeals seeking to force the Food and Drug Administration (FDA) to take action on a petition the organization filed in October 2008 requesting that the agency prohibit the chemical’s use in food packaging. In re: NRDC, Inc., No. 10-1142 (D.C. Cir., filed June 29, 2010). One year ago, NRDC also submitted a petition to California EPA’s Office of Environmental Health Hazard Assessment, requesting that BPA be added to list of chemicals “known to the state to cause reproductive toxicity” under the Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as Prop. 65). In its lawsuit, NRDC notes that more than 600 days have passed since its FDA petition was filed, and the NRDC reiterates…
The Food and Drug Administration (FDA) has submitted to the Office of Management and Budget a proposed information collection related to food labeling regulations. According to FDA, these regulations govern the submission of food labeling petitions and require food producers to: (i) disclose specific information about themselves or their products on labeling; (ii) retain records establishing the basis for the information contained on labeling; and (iii) provide these records to regulatory officials. The information collection notice provides estimated annual reporting and recording keeping burdens for these regulations. FDA has noted that it is no longer combining these burden hour estimates with those in information collections titled, “Food Labeling: Nutritional Labeling of Dietary Supplements on a ‘Per Day’ Basis” and “Food Labeling: Trans Fatty Acids in Nutrition Labeling,” although “[s]uch consolidation may occur in the future.” The agency will accept comments until August 16, 2010. See Federal Register, July 15, 2010.
The Food and Drug Administration (FDA) is seeking public comments on a new federal law that requires certain chain restaurants and retail food operations to post the calorie content of individual items on menus, menu boards and drive-through menu boards. Enacted March 23, 2010, section 4205 of the Affordable Care Act applies to food establishments with 20 or more locations, such as restaurants, coffee shops, delis, movie theaters, bakeries, and ice cream shops. Per-serving information related to the amount of calories, cholesterol, fiber, sodium, sugars, total and complex carbohydrates, total and saturated fat, and total protein must be available in writing on request. The law also compels vending machine operators with 20 or more machines to list calorie information “in close proximity to” each article of food or the selection button. The law instructs FDA to issue proposed regulations to carry out these provisions by March 23, 2011. The agency…
The Federal Trade Commission (FTC) has announced a settlement with Nestlé HealthCare Nutrition, Inc., which the agency contends has deceptively marketed a children’s drink, BOOST Kid Essentials®, as a product clinically shown to reduce illness in children by strengthening the immune system and helping them recover more quickly from diarrhea. The beverage, intended for children ages 1 to 13, contains probiotics embedded in a straw that was “prominently featured in ads for the product.” According to the FTC, the company has agreed to stop making health-related claims about cold or flu viruses “unless the claim is approved by the Food and Drug Administration.” The company has also agreed to cease making claims about diarrhea and reduced absences from day care or school “unless the representation is non-misleading and, at the time of making such representation, the [company] possesses and relies upon competent and reliable scientific evidence that substantiates that the…
U.S. Representative Edward Markey (D-Mass.) has called on the Food and Drug Administration (FDA) to respond to reports that the April 20, 2010, oil spill has contaminated the marine food chain in the Gulf of Mexico with toxins such as arsenic. In a July 13 letter to FDA Commissioner Margaret Hamburg, Markey expressed concern “that the mixture of oil, dispersants, arsenic and other toxic compounds are having effects on seafood that may not be detectable for months.” Markey, chair of the House Select Committee on Energy Independence and Global Warming, said researchers have uncovered droplets of oil found inside crab larvae harvested from gulf waters near Pensacola, Florida; Galveston, Texas; and Grand Isle, Louisiana. “In some areas, 100 percent of the larvae recovered contain droplets of oil hydrocarbons, a major concern given that crab is a favorite food for both humans and multiple fish species that live in the marshes,”…
U.S. Senator Chuck Schumer (D-N.Y.) has asked the Federal Trade Commission (FTC) to investigate the marketing of certain caffeinated malt beverages that “seem to be explicitly designed to attract underage drinkers” and to determine whether new enforcement actions are warranted. In a July 12, 2010, press release, Schumer singled out popular drinks “that appear hip with flashy colors and funky designs” but contain 12 percent alcohol, which is more than twice the amount in a bottle of beer or glass of wine. “However, the labeling and packaging of these beverages renders them nearly indistinguishable from ordinary energy drinks,” Schumer said. “Some stores even stock them directly next to other energy drinks causing further confusion for legal and illegal consumers.” Schumer called the marketing “extremely troubling” in a letter to FTC Chair Jon Leibowitz. “Frankly, it looks to me as if manufacturers are trying to mislead adults and business owners who…
The U.S. Department of Agriculture (USDA) has announced a trade agreement with Russia that ends a January 2010 ban on chlorine-treated poultry from the United States. In exchange for lifting the ban, USDA has pledged to post on its website information about “which disinfectants/pathogen reductions treatments are known to be approved by Russia for use on processing poultry and on food generally.” U.S. officials will also provide (i) “information . . . on the solutions that companies use on poultry shipped to Russia,” and (ii) “an updated list of poultry processing facilities authorized to ship poultry to Russia.” The accord came after 25 senators reportedly urged President Barack Obama (D) to take up the issue with Russian President Dmitry Medvedev. “I am pleased that after several months of negotiations, we have finally reached a breakthrough which will allow for U.S. poultry exports to resume to this important market,” stated U.S.…
The U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS) has announced two public meetings with the Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) to hear stakeholder input on collective efforts to reduce illness, harm and death from contaminated food. Extensions of an initial workshop held in March 2010, the meetings will be held July 21, in Chicago, Illinois, and October 20 in Portland, Oregon. Presentations are expected from consumer groups, industry, public health experts, and state and local regulators on recommended measures for assessing food safety performance. CDC, FDA and FSIS will present information on the Food Safety Working Group’s “charge to create meaningful metrics to measure the effectiveness of the nation’s food safety system,” according to USDA. The agencies will also “present current thinking, focusing on how these metrics might be applied to evaluate the success of FDA’s shell…
The Food and Drug Administration (FDA) has announced that its Science Board will hold a public meeting on August 16, 2010, in Bethesda, Maryland. Tasked with advising officials on “specific complex and technical issues, as well as emerging issues within the scientific community in industry and academia,” the board keeps pace with “technical and scientific evolutions in the fields of regulatory science.” At this meeting, it will hear a subcommittee’s final report on research at the Center for Food Safety and Applied Nutrition (CFSAN), as well as discuss the agency’s nanotechnology research program, among other agenda items. FDA has stated that it intends to make background material available on its website “no later than [two] business days before the meeting.” The agency will also accept written data submissions on or before August 9, 2010, and proposals for formal oral presentations on or before August 2, 2010. See Federal Register, June…
