A California federal court will allow to proceed a suit alleging that Kellogg’s breakfast cereals and bars are unhealthy because of excess added sugars, finding that the labeling and packaging of 24 named products “contain at least one statement that is not preempted, non-misleading or puffery as a matter of law.” Hadley v. Kellogg Sales Co., No. 16-4955 (N.D. Cal., entered August 10, 2017). The court rejected Kellogg’s argument that the company accurately disclosed the ingredients of its products and complied with U.S. Food and Drug Administration (FDA) labeling guidelines. The court also found that because FDA “expressly decided” not to set a level for sugar that would disqualify a product from making health or nutrient-content claims, any allegation that Kellogg’s product labeling was misleading because of a certain amount of added sugar was preempted by the Food, Drug and Cosmetic Act. However, the court refused to preempt a claim…
A California federal court has certified two classes alleging that Deoleo USA Inc., importer of Bertolli and Carapelli olive oils, misleadingly labeled its products as "extra virgin" and "imported from Italy." Koller v. Med Foods, Inc., No. 14-2400 (N.D. Cal., entered August 24, 2017). Details on the court's denial of a motion to dismiss appear in Issue 550 of this Update. The court held that the question is whether the manufacturer “breached any legal obligation to take reasonable steps to ensure its oils meet the standards at least until the ‘best by’ date” on the bottle, a question that is subject to determination on a class-wide basis and predominates over any individual issues. Issue 645
Food & Water Watch has filed a lawsuit against the U.S. Department of Agriculture (USDA) and the Farm Service Agency seeking vacatur of agency decisions that guaranteed loans and allowed construction of a concentrated animal feeding operation (CAFO) in the Choptank River watershed on Maryland’s Eastern Shore. Food & Water Watch v. United States Dep’t of Agric., No. 17-1714 (D.D.C., filed August 23, 2017). The CAFO is located upstream from the Chesapeake Bay, where the U.S. Environmental Protection Agency and surrounding states have undertaken extensive agricultural pollution cleanup efforts. Among other allegations, the complaint asserts that USDA’s environmental assessment found that the CAFO’s density would conform to industry standards but that the actual density is nearly double those standards, resulting in higher-than-average waste concentration, air and water pollution. The plaintiff argues that the agencies (i) failed to consider adequate alternatives; (ii) failed to address biological resources, groundwater, surface water or…
A federal court has dismissed multidistrict litigation alleging that several brands' “100% Grated Parmesan Cheese” misled consumers because the products contained as much as 8.8 percent cellulose, finding that the claims were “doomed by the readily accessible ingredient panels on the products that disclose the presence of non-cheese ingredients.” In Re: 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., No. 16-5802 (N.D. Ill., entered August 24, 2017). Additional details about the litigation appear in Issues 595 and 606 of this Update. The court found the cheese's label was ambiguous, noting, “Although 100% Grated Parmesan Cheese might be interpreted as saying the product is 100% cheese and nothing else, it also might be an assertion that 100% of the cheese is parmesan cheese, or that the parmesan cheese is 100% grated. Reasonable consumers would thus need more information before concluding that the labels promised only cheese and nothing more, and…
A federal court has dismissed with prejudice a putative class action alleging that Quaker Oats’ use of “100% Natural” on its products misleads consumers, holding that the plaintiffs’ claims are expressly preempted by the Food, Drug and Cosmetic Act (FDCA). Gibson v. Quaker Oats Co., No. 16-4853 (N.D. Ill., entered August 14, 2017). The plaintiffs alleged that Quaker’s use of “natural” was misleading under several state statutes because the products contained residues of the herbicide glyphosate. The court held that nutritional and food labeling is governed by the FDCA, preempting the plaintiffs' state law claims, which were “attempting to challenge how food stuffs are marketed." In addition, the court held that the FDCA expressly governs the presence of pesticide and herbicide residues in food, “establishing a clear and manifest purpose that preempts state regulation of food labeling.” The court also found the plaintiffs had no standing to pursue claims related…
Following the collapse of a salmon farm, the Washington Department of Fish and Wildlife has asked recreational fishers to help catch as many Atlantic salmon as possible. Cooke Aquaculture cited "exceptionally high tides and currents coinciding with this week's solar eclipse" as the cause of the damage, which released an unknown number of farm-bred Atlantic salmon into the Pacific Ocean. Initial estimates were that about 5,000 fish escaped, but a Cooke spokesperson reportedly told the Seattle Times that the entire farm, which contained more than 300,000 fish, had “totally collapsed.” See Seattle Times, August 24, 2017. Issue 645
The U.S. Food and Drug Administration has made available industry guidance titled “Mitigation Strategies to Protect Food Against Intentional Adulteration: What You Need to Know About the FDA Regulation: Small Entity Compliance Guide.” Comments on the guidance may be submitted at any time. Issue 645
The U.S. Environmental Protection Agency (EPA) has issued working guidance on its Section 8(a) Information Gathering Rule on Nanomaterials in Commerce for the agency’s Final Nanotechnology Reporting and Record-Keeping Requirements Rule, which became effective August 14, 2017. The rule has been modified to eliminate: (i) exemptions for nanoclays, zinc oxide, nanocellulose and naturally occurring nanomaterials from reporting requirements; (ii) volume cut-offs below which no reporting would be required; and (iii) an exemption for chemical substances manufactured as part of surface films. Issue 645
The U.S. Food and Drug Administration (FDA) has announced the availability of industry guidance titled, “Ultrafiltered Milk in the Production of Standardized Cheese and Related Cheese Products: Guidance for Industry.” The guidance advises manufacturers that FDA intends to exercise enforcement in the use of fluid ultrafiltered milk in cheese products. Issue 645
The U.S. International Trade Commission (USITC) has found a “reasonable indication” that domestic olive production has been injured by imports of Spanish olives sold at less than fair market value. In June 2017, two California olive producers filed a petition alleging that the imported olives, which are subsidized by the Spanish government, have damaged domestic producers. According to the petition, the number of domestic olive producers has fallen from 20 to two over the last few decades. The Department of Commerce initiated an investigation in July, and final determinations of penalties or duties due under the Tariff Act of 1930 are expected in early 2018. Issue 645
