The U.S. Food and Drug Administration (FDA) has denied a February 9, 2012, petition filed by the Center for Science in the Public Interest (CSPI) that requested “a performance standard of non-detectable as determined by the best available method of detection for Vibrio vulnificus in molluscan shellfish intended for raw or processed raw consumption.” Citing V. vulnificus as “the leading cause of seafood-associated deaths in the United States,” the petition notes that FDA already enforces a zero tolerance standard for V. vulnificus in ready-to-eat fish and a non-detectable standard of less than 30 most probable numbers per gram (MPN/g) for post-harvest processed shellfish. According to CSPI, the Food Safety Modernization Act directs the agency to set performance standards for significant foodborne contaminants. In rejecting the petition, FDA notes that other strategies—including state adherence to and federal oversight of control measures designed to manage V. vulnificus risk—have effectively reduced oyster-associated V.…
After analyzing food and beverage industry responses to a 2015 consultation by the U.S. Dietary Guidelines Advisory Committee, researchers with the London School of Hygiene and Tropical Medicine have claimed that product reformulation—“the process of altering a food or beverage product’s recipe or composition to improve the product’s health profile”—“has been largely voluntary.” C. Scott, et al., “Food and beverage product reformulation as a corporate political strategy,” Social Science & Medicine, November 2016. Part of a larger research project seeking to explore the “political aspects of product reformulation” to inform the debate about obesity and non-communicable diseases, the study purportedly identifies common themes among respondents, such as messages that focus on “positive” nutrients, companies being “part of the solution and not the problem,” voluntary governance and individual responsibility. In contrast to those who view product reformulation as a “win-win” strategy, the authors suggest that it “may be one part of…
The RAND Corp. has published a study claiming that “most kids’ menu items offered by the nation’s top 200 restaurant chains exceed the calorie counts recommended by nutrition experts,” according to a December 5, 2016, press release. Relying on the recommendations of 15 child nutrition experts—including Public Health Institute Advisor Lynn Silver and Rudd Center for Food Policy & Obesity Director Marlene Schwartz—the study authors adopted the following benchmarks: (i) a maximum of 300 calories for the main dishes in children’s meals; (ii) 100 calories for a serving of fried potatoes; (iii) 150 calories for soups, appetizers and snacks; and (iv) 150 calories for vegetables and salads that included added sauces, with the entire meal not to exceed 600 calories. The study singles out fried potatoes as the item “that most often exceeded the calorie guidelines.” As the authors conclude, “Given the high frequency of children dining away from home,…
A consumer has filed a projected class action alleging Newman’s Own, Inc. misleadingly markets its pasta sauce products as natural despite containing citric acid. Wong v. Newman’s Own, Inc., No. 16-6690 (E.D.N.Y., filed November 30, 2016). The complaint asserts the company “deceptively used the term ‘natural’ to describe a product containing ingredients that have been either extensively chemically processed or fundamentally altered from their natural state and thus cannot be considered ‘minimally processed.’” The plaintiff admits “there is not an exacting definition of ‘natural’ in reference to food,” but cites the Merriam-Webster Dictionary, a decision from the National Advertising Division of the Better Business Bureau and the U.S. Department of Agriculture’s 2005 Food Standards and Labeling Policy Book to support his definition. For alleged violations of New York’s consumer-protection statutes, the plaintiff seeks class certification, restitution, damages, an injunction and attorney’s fees. Issue 625
Walter Scott Cameron, a former senior vice president of sales at Bumble Bee Foods, LLC has pleaded guilty to combination and conspiracy to fix, raise and maintain the prices of packaged seafood, including canned tuna. U. S. v. Cameron, No. 16-CR-0501 (N.D. Cal., information filed December 7, 2016). The criminal information accuses Cameron of conspiring with other seafood companies to fix prices of seafood sold in the United States. "Today’s charge is the first to be filed in the Antitrust Division’s ongoing investigation into price fixing among some of the largest suppliers of canned tuna and other packaged seafood,” said an attorney with the U.S. Department of Justice’s Antitrust Division in a December 7, 2016, press release. “All consumers deserve competitive prices for these important kitchen staples, and companies and executives who cheat those consumers will be held criminally accountable.” Issue 625
A California federal court has denied Kraft Food Group Inc.’s request to stay class action litigation alleging the company’s fat-free cheese product is misleadingly labeled “natural” because it contains artificial coloring, finding that the U.S. Food and Drug Administration’s (FDA’s) expected guidance on the term “natural” does not affect the issues of the case. Morales v. Kraft Foods Grp. Inc., No. 14-4387 (C.D. Cal., order entered December 6, 2016). A week earlier, the same court denied Kraft’s motion for summary judgment on the grounds that triable issues existed in the case, including (i) “whether consumers are likely to believe that ‘artificial color’ is not an artificial ingredient if it is produced by a natural product”; (ii) “whether such belief is material to customers’ purchasing decisions”; and (iii) “whether all artificial colors, regardless of source, are artificial ingredients.” Details about the certification of the class appear in Issue 570 of this…
A Brazilian appeals court has reportedly affirmed a lower court’s order to AmBev S/A to pay a former employee about $14,800 for moral damages related to his job as a beer taster, which he alleged led to his alcoholism. AmBev argued that it was not liable because the employee’s beer-tasting activities were voluntary. The court disagreed, finding that employers have a duty to avoid exposing their employees to the “inherent risks of the job activities,” even if voluntary. AmBev failed to demonstrate the proper care toward the plaintiff’s health, the court held, because it did not monitor his health throughout his employment as a beer taster, it did not train him on the symptoms of alcoholism or other related conditions, and it told him that if he was declared addicted he would need to seek treatment himself. See Superior Council of Labor Justice (Conselho Superior da Justiça do Trabalho), November 28,…
The Fourth Circuit Court of Appeals has upheld a lower court’s determination that the U.S. Food and Drug Administration (FDA) had the discretion to issue an incorrect contamination warning about Salmonella-tainted tomatoes, which devalued a tomato farmer’s crop by $15 million. Seaside Farm v. United States, No. 15-2562 (4th Cir., order entered December 2, 2016). Details about the lower court’s decision appear in Issue 588 of this Update. The lawsuit stemmed from FDA’s warning against eating raw tomatoes in 2008 following an outbreak of Salmonella that was later traced to jalapeno and Serrano peppers. Seaside Farm filed suit alleging FDA negligently issued the warning, impairing the value of its crop. The trial court found that FDA was acting within its discretion to issue the warning. Seaside argued that FDA’s warning was overly broad and based on insufficient evidence, noting that the agency failed to test any tomatoes before issuing its…
The U.S. Department of Agriculture’s National Organic Program (NOP) has proposed guidance “for calculating the percentage of organic ingredients in multi-ingredient products.” Intended for accredited certifying agents and handling operations, the draft guidance responds to a National Organic Standards Board (NOSB) request for correction and clarification of the requirements codified at 7 CFR 205.302(a), which defines the method of calculating the percentage of organically produced ingredients as ‘‘[d]ividing the total net weight (excluding water and salt) of combined organic ingredients at formulation by the total weight (excluding water and salt) of the finished product.’’ Per NOSB’s recommendations, the draft guidance corrects this language “to clarify that organic percentages should be calculated by dividing the total net weight (excluding water and salt) of combined organic ingredients at formulation by the total net weight (excluding water and salt) of all ingredients,” as opposed to “the weight of the ‘finished product’ because most…
A consumer has filed a putative class action alleging Kellogg Co.’s Special K® Fruit & Yogurt cereal is misleadingly labeled with pictures of strawberries and blackberries despite that dried apples are listed as the only fruit contained in the product. George v. Kellogg Co., No. 16-1887 (E.D. Mo., removed to federal court December 1, 2016). Asserting that she paid a premium price for the product believing it to contain strawberries and blackberries, the plaintiff argues that the labeling violates the Federal Food, Drug, and Cosmetic Act and its labeling regulations. For an alleged violation of the Missouri Merchandising Practices Act and unjust enrichment, she seeks class certification, damages and attorney’s fees. Issue 625
