Court Finds Bumble Bee Tuna Omega-3 Labeling “Open to Criticism” But Not Illegal
A California court held that Bumble Bee Foods, LLC did not act illegally by claiming its tuna was an “excellent source” of omega-3 fatty acids despite a U.S. Food and Drug Administration (FDA) proposal to prohibit the practice. Garrett v. Bumble Bee Foods, LLC, No. 14-264322 (Cal. Sup. Ct. Santa Clara Cty., order entered March 30, 2017). The plaintiffs alleged Bumble Bee began making the omega-3 claim in 2008, one year after FDA published its proposed rule, but the court found that Bumble Bee ended the claim after the rule was finalized in April 2014. “The fact that Bumble Bee engaged in conduct that was proscribed by a ‘proposed’ rule does not make it unlawful or illegal,” the court said.
Bumble Bee began using the omega-3 claim after a supplement maker notified FDA in 2005 that it intended to use an omega-3 nutrient content claim on its product labels. Because FDA failed to object within 120 days, its claim was deemed permissible. The court noted an internal dispute at Bumble Bee over whether it too could use the claim. Ultimately, the marketing department “chose to disregard the advice of its own compliance specialist in deciding to go forward with the ‘excellent source’ claim.” Bumble Bee’s reliance on FDA’s failure to act against the supplement maker was not unlawful, the court found, and prohibiting Bumble Bee from using the same claim as another company could place it at a competitive disadvantage. Bumble Bee’s decision to use the claim under such circumstances was “certainly open to criticism and challenge,” the court noted.
The plaintiffs also claimed that Bumble Bee “failed to reveal a material fact on the label” of its tuna by displaying the American Heart Association “heart check” logo without disclosing it was a paid endorsement, but the court held that the plaintiffs had failed to prove that the logo was in fact a paid endorsement.
Issue 630
