After reviewing a challenge by the maker of Gerber baby foods, the National Advertising Division (NAD) has recommended that Beech-Nut Nutrition discontinue several advertising claims but rejected complaints that Beech-Nut’s ads implied its baby foods are fresh. NAD warned Beech-Nut against use of the term “coldpuree” unless it “conspicuously” explains that foods are cooked after they are pureed cold. It also recommended that Beech-Nut stop making unsupported claims that “glass is the ultimate in sustainability” and that “glass is nature’s safest container.” Beech-Nut challenged NAD’s jurisdiction, arguing that most of the ads are no longer used, but NAD rejected the challenge and noted that the challenged claims continued to appear on Beech-Nut’s website, in a YouTube video and on product packaging. Issue 632
The World Trade Organization (WTO) has held that Mexico can impose $163 million in trade sanctions against the United States for enacting tougher “dolphin-safe” requirements on fish caught in a part of the Pacific Ocean used primarily by Mexican fishers. The decades-long dispute began when international conservation efforts pressured countries to protect dolphins, which commonly swim with yellowfin tuna in that area. In response, the United States implemented stringent rules for tuna catches and imports, which Mexico argues has shut its fishing businesses out of an import market worth $680 million in 2014. The U.S. revised its requirements after WTO found in favor of Mexico in 2012, but Mexico argued that the revisions still improperly restricted tuna imports and asked for $472 million in sanctions. WTO rejected a U.S. argument to decide the dispute based on 2016 revisions that expanded the same requirements to all countries, but an expected July…
President Donald Trump has indicated that he will attempt to renegotiate the North American Free Trade Agreement after making several negative comments about Canada's dairy pricing. The dispute centers on ultra-filtered milk, a product used in the production of cheese that U.S. dairy farmers previously sold to Canadian companies. After Canadian dairy farmers in Ontario dropped their prices low enough to compete with U.S. farmers, many Canadian cheesemakers canceled contracts with their U.S. suppliers to pursue the Ontario farmers' supply. Trump tweeted, “We will not stand for this,” and later announced that he will attempt to renegotiate the trade agreement with Canada. See USA Today, April 25, 2017; Washington Post, April 27, 2017. Issue 632
A Massachusetts house bill proposing a one- and two-cent tax per fluid ounce of sugar-sweetened beverages (SSBs) has been withdrawn during a state budget hearing. The tax would have applied to SSBs containing more than five grams of sugar but excluded 100-percent juice, milk substitutes, infant formula and beverages for medicinal use. Although sponsor Kay Khan (D) withdrew the proposal, a spokesperson for her office told Bloomberg that she has filed legislation to pursue the tax. See Bloomberg BNA, April 25, 2017. Issue 632
Shook, Hardy & Bacon Partner Cary Silverman explains in an April 17, 2017, Law360 article that a six-fold growth in slack-fill lawsuits stems from a “precise template” developed by plaintiffs' lawyers seeking to pressure companies into outofcourt settlements. “I call them ‘shake the box’ lawsuits,” reports Silverman. “If you can hear the product shake, you’ve got a lawsuit. You just plug it into your template, take a photo, and you’re ready to go.” Law360 quotes Silverman's report on food lawsuits for the U.S. Chamber Institute for Legal Reform, “The Food Court: Trends in Food and Beverage Class Action Litigation,” which he co-authored with Shook Partner Jim Muehlberger. Silverman also presented “All You Can Eat Lawsuits: Restoring Sanity to Food Litigation," discussing the report's findings, for a CLE at the University of Cincinnati College of Law on April 13, 2017. Issue 632
A Burger King advertisement featuring a prompt for Google Home, a voice-powered digital-assistant device, has caught media attention as an interesting but flawed method of incorporating artificial intelligence into a food-marketing campaign. The 15-second ad features a Burger King employee noting the ad is too short to explain the ingredients, stating Google Home's trigger, "OK, Google," and asking, "What is the Whopper burger?" When triggered, Google Home recites the answer from Wikipedia, which functioned as expected when viewers first saw the spot. As the ad caught attention, however, pranksters began editing the Wikipedia page, removing the actual ingredients and replacing them with "toenail clippings," "cyanide" and "medium-sized child," among others. Further, Burger King did not collaborate on the project with Google, which quickly disabled Google Home devices' responses to the ad. See New York Times, NPR, and Reuters, April 12, 2017. Issue 631
The Panel of Food Additives and Nutrient Sources added to Food, a branch of the European Food Safety Authority (EFSA), has conducted a reassessment on the effects of acacia gum used in food products and reportedly found 30,000 milligrams per person per day to be well-tolerated. The scientific opinion apparently found no carcinogenic or other adverse effects of acacia gum, which is "unlikely to be absorbed intact and is slightly fermented by intestinal microbiota," at the refined exposure assessment for the reported uses of the ingredient as a food additive. Issue 631
Cornell University has issued a statement concluding that alleged statistical errors in studies authored by Brian Wansink, director of the university’s Food and Brand Lab, “did not constitute scientific misconduct.” Known for his work focused on how ads, packaging and other factors influence eating behavior, Wansink reportedly attracted criticism after he published a blog post about how his lab conducted statistical analysis in one study. A group of outside researchers then ran their own analysis on the data, purportedly documenting 150 errors in four papers published by Wansink’s group. According to Cornell, the internal investigation has resulted in the implementation of new research procedures at the Food and Brand Lab. “These strict procedures are designed not only to prevent the type of oversights and errors noted here from occurring in the future, but also to create a convenient system for anonymizing and cataloguing data so that this background information can…
Texas chain Torchy’s Tacos, which uses the tagline “Damn Good Tacos” in its restaurants and merchandising, has filed suit against Colorado restaurant Dam Good Tacos for trademark infringement, claiming consumer confusion. Success Foods Mgmt. Group, LLC v. Dam Good Systems, LLC, No. 170842 (D. Colo., filed April 5, 2017). Asserting that it registered the “Damn Good Tacos” trademark in 2008, Torchy’s alleges federal trademark infringement, unfair competition, and violation of the Colorado Consumer Protection Act, and it seeks injunctive relief, damages and destruction of Dam Good Tacos’ infringing URLs, email addresses and all packaging, promotional and advertising materials. Issue 631
The Irish distributor of Kerrygold butter won an emergency restraining order against a Wisconsin creamery after alleging the creamery backed out of an agreement to process Kerrygold locally and later created its own nearly identical product, “Irishgold,” infringing Kerrygold’s trademark. Ornua Foods N. Am., Inc. v. Eurogold USA LLC, No. 170510 (E.D. Wis., filed April 10, 2017). A Wisconsin federal court granted the order after finding Ornua Foods, Kellygold’s maker, likely to win the trademark case it filed on the merits. After Kerrygold became the top-selling imported butter in the United States, Wisconsin removed Kerrygold butter from stores under a statute requiring all butter sold in the state to bear either a Wisconsin or federal grade mark. After the ban, Ornua Foods began working with Wisconsin state officials and defendant Old World Creamery to process the Irish-made butter a second time, making it eligible for a state grade mark. The…
