University of Cambridge researchers have published a study examining "whether consumers are misled about wholegrain (WG) content and product healthfulness based on common product labels." Wilde et al., "Consumer confusion about wholegrain content and healthfulness in product labels: a discrete choice experiment and comprehension assessment," Public Health Nutrition, August 10, 2020. The researchers showed online participants a pair of hypothetical products and asked them to determine which product is more healthful based on disclosed nutritional information, with some products containing "multigrain," "wheat," "made with whole grains" or similar labeling claims. "Although by design, the ‘no WG label’ option had more actual WG content, substantial fractions of respondents incorrectly identified the ‘WG label’ option as healthier or chose the ‘equally healthy’ option," the researchers stated. In addition, they found that "[r]espondents showed substantial difficulty in identifying the WG content of four actual products found in the marketplace," generally overestimating the amount of…
A plaintiff has filed a lawsuit asserting that Trader Joe's misleads consumers by using "enriched flour" as the predominant ingredient in its 12 Grain Mini Snack Crackers. Rosenfeld v. Trader Joe's Co., No. 20-3717 (E.D.N.Y., filed August 14, 2020). "The representations are misleading because the Product contains (1) a de minimis amount of the 12 grain blend, (2) less of the 12 grain blend than consumers expect and (3) predominantly [] enriched white flour," the plaintiff argues. "This is revealed through the fine print of the ingredient list, indicating 'enriched flour' is the predominant flour, listed far ahead of the 12 grain blend ('Multigrain Flour Blend')." The plaintiff argues that the product's "common or usual name" should include the "percentage of the characterizing 12 grain blend ingredient" because "the proportion of this ingredient 'has a material bearing on price or consumer acceptance or when the labeling or the appearance of the…
A consumer has filed a putative class action alleging that Dietz & Watson's smoked gouda is not prepared by smoking but rather by the addition of a smoke flavor. Watson v. Dietz & Watson Inc., No. 20-6550 (S.D.N.Y., filed August 17, 2020). "No reasonable consumer would be instinctively distrustful or skeptical of a product labeled 'Smoked Gouda' such that they would be inclined to verify whether the ingredient list disclosed a 'smoke flavor,'" the complaint asserts. "However, the Product's smoked taste is provided by 'Natural Smoke Flavoring' instead of from being smoked, indicated in the small print on the ingredient list." The plaintiff alleges violations of New York's consumer-protection statute and the Magnuson-Moss Warranty Act as well as fraud, unjust enrichment and negligent misrepresentation, and she seeks class certification, injunctive relief, damages, costs and attorney's fees.
The U.S. Drug Enforcement Administration (DEA) has proposed a rule that would codify the legalization of hemp cultivation and related definitions passed in the 2018 Farm Bill into the Controlled Substances Act. The amendments include (i) modifying federal rules to state that "the definition of 'Tetrahydrocannabinols' does not include 'any material, compound, mixture, or preparation that falls within the definition of hemp set forth in 7 U.S.C. 1639o'"; (ii) removing from Schedule V a "drug product in finished dosage formulation that has been approved by the U.S. Food and Drug Administration that contains cannabidiol [] derived from cannabis and no more than 0.1% (w/w) residual tetrahydrocannabinols"; (iii) removing import and export controls on these substances; and (iv) modifying federal rules by "stating that the definition of 'Marihuana Extract' is limited to extracts 'containing greater than 0.3 percent delta-9-tetrahydrocannabinol on a dry weight basis.'"
The U.S. Department of Agriculture's (USDA's) Food Safety and Inspection Service (FSIS) has announced a virtual public meeting of the National Advisory Committee on Meat and Poultry Inspection (NACMPI) on September 24-25, 2020. The objectives are "for the Committee to review and advise about the steps FSIS should take to ensure better control of artisanal, shelf-stable ready-to-eat (RTE) fermented, salt-cured, or dried products that rely on multiple hurdles for lethality" and to "review and advise whether the Agency should continue not to test boxed beef primal and sub-primal products for Shiga toxin-producing E. coli (STEC), if they are intended for intact cuts." USDA also announced the appointment of 10 new members to NACMPI, as well as an additional member to the National Advisory Committee on Microbiological Criteria for Foods.
A consumer has filed a putative class action alleging that Panera Bread Co., or St. Louis Bread Co., markets its products as "100% clean" but sells products with ingredients "that are artificial, chemical, and/or synthetic preservatives, sweeteners, flavors, and colors." Sally v. Panera Bread Co., No. 20-1068 (St. Louis Cir. Ct., filed August 13, 2020). The complaint asserts that multiple products contain preservatives, including ascorbic acid, citric acid, potassium sorbate and tocopherols. "[A] preservative as defined by the FDA is a substance that 'tends' to prevent or retard the deterioration of foods," the complaint states. "Thus, it is not necessary that it function as a preservative in every single instance for it to qualify as a preservative according to the FDA's definition, so long as this is its general tendency." The plaintiff seeks class certification, refunds, injunctive relief, punitive damages, attorney's fees and costs for an alleged violation of the Missouri…
A New York federal court has trimmed claims in a lawsuit alleging that Arizona Beverages Co. and its parent company Hornell Brewing Co. Inc. misled consumers by labeling Arizona Fruit Snacks as "all natural" despite containing synthetic ingredients, including ascorbic acid, glucose syrup, citric acid, gelatin and dextrose. Silva v. Hornell Brewing Co. Inc., No. 20-0756 (E.D.N.Y., entered August 10, 2020). The court declined to dismiss the case on the basis that the U.S. Food and Drug Administration (FDA) holds primary jurisdiction over the issue. "First, while defining the term 'all natural' does involve technical and policy considerations, this case does not require a technical definition of 'all natural,'" the court held. "Instead, this case requires a determination of whether labeling the Product as 'all natural' is misleading to a reasonable consumer. That type of legal question is within the conventional experience of the court and does not require FDA…
U.S. Sen. Chuck Schumer (D-N.Y.) has called on the U.S. Department of Agriculture (USDA) to "delay the issuance of a U.S. Domestic Hemp Production Program final rule until 2022 and allow hemp growers and producers across the country and in Upstate New York to continue to operate under the 2014 Farm Bill pilot program regulations until that time." Schumer's press release includes the letter he sent to Secretary Perdue. "[A]s industrial hemp farmers and businesses explore the full benefits of the 2018 Farm Bill, they have experienced serious difficulty integrating the Interim Final Rules into their operations. Particularly in the current COVID climate, I see many farmers and processors in New York struggle with incorporating these changes into the existing state Pilot Programs. In a time when farmers and producers struggle with economic uncertainty, the implementation of the Interim Final Rules will create costs without the support of offsetting revenues."…
The U.S. Food and Drug Administration (FDA) has issued a final rule establishing requirements for "gluten-free" labeling for foods with fermented or hydrolyzed ingredients. Under the rule, FDA will evaluate compliance based on records manufacturers will be required to maintain because the agency "knows of no scientifically valid analytical method effective in detecting and quantifying with precision the gluten protein content in fermented or hydrolyzed foods in terms of equivalent amounts of intact gluten proteins." The rule takes effect October 13, 2020.
The European Food Safety Authority (EFSA) has completed its health risk assessment for glycoalkaloids in food and animal feeds, especially in potatoes. "Experts identified a health concern for infants and toddlers, considering both mean and high consumers," the agency's announcement states. "Among adults, there is a health concern for high consumers only. Glycoalkaloids poisoning can cause acute gastrointestinal symptoms, such as nausea, vomiting and diarrhoea." "Based on the latest available knowledge, EFSA derived a lowest observed adverse effect level of 1 milligram per kilogram of body weight per day. This equates to the lowest dose at which undesired effects are observed," according to the statement. "Peeling, boiling and frying can reduce the content of glycoalkaloids in food. For example, peeling potatoes can reduce their content by between 25 and 75%, boiling in water between 5 and 65%, and frying in oil between 20 and 90%."
