A putative class action was reportedly filed in a California state court against Nestlé, alleging that the company falsely advertises its “Juicy Juice Brain Development Fruit Juice” as a product that will improve toddlers’ brain function. Plaintiff Alexis Farmer, who then dismissed the complaint without prejudice several days later, reportedly claimed that she purchased the company’s juice relying on labeling and advertisements stating that it contained DHA Omega-3, a “fatty acid especially important for brain development in children under two years old.” Farmer was seeking damages and injunctive relief; her complaint apparently alleged false and misleading advertising, unjust enrichment, fraud, and civil code violations. See Courthouse News, September 23, 2009.

In a related development, Health Canada has apparently decided not to stop infant-formula manufacturers from claiming that DHA, in any amount, will support normal brain and eye development, particularly for children under two. The Canadian Food Inspection Agency asked the agency to set a minimum level if formula makers wish to make these claims, according to internal correspondence obtained through an access-to-information request. “It is unfortunate that Health Canada is removing the proposed revision to require that food actually contain a significant (source) amount of the nutrient that is the subject of the claim, otherwise you end up with situations like this one where a big deal is made about a food containing” little of the nutrient.

The Health Canada approach reportedly differs with the European Union which decided earlier in 2009 that infant-formula companies claiming that “DHA contributes to the visual development of infants” may do so only if the fatty-acid content is at least 0.3 percent DHA. See Ottawa Citizen, September 17, 2009.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.