A federal court in Florida has dismissed putative class claims in a consumer-fraud lawsuit to the extent they involve allegedly false “evaporated cane juice” (ECJ) labeling on Amy’s Kitchen food products that the named plaintiff did not purchase, but has otherwise allowed the remaining claims to proceed. Reilly v. Amy’s Kitchen, Inc., No. 13-21525 (S.D. Fla., order entered December 9, 2013). According to the court, in the Eleventh Circuit, plaintiffs have standing to assert claims based only on products they actually purchase thus rejecting the plaintiff’s argument that (i) she could bring claims involving products nearly identical to the purchased product and (ii) the issue was one of typicality and representation best resolved at the class certification stage. Because the plaintiff purchased just three Amy’s Kitchen products with ECJ listed as an ingredient on the label, she will be unable to pursue claims as to 57 other products. The court rejected…
A federal court in New York has certified a consumer-fraud class action against Kangadis Food Inc., d/b/a The Gourmet Factory, alleging that the company falsely labels its products as “100% Pure Olive Oil” when they actually contain the industrially processed substance “olive-pomace oil,” “olive-residue oil” or “Pomace.” Ebin v. Kangadis Food Inc. d/b/a The Gourmet Factory, No. 13-2311 (S.D.N.Y., order entered December 11, 2013). The court approved the named plaintiffs as class representatives and indicated that a memorandum stating the reasons for its ruling “will issue in due course.” Additional information about the lawsuit appears in Issue 492 of this Update. On the day the order issued, the court also filed a memorandum explaining its reasons for dismissing certain claims and allowing others to proceed in an order entered in July 2013. The court dismissed for insufficient pleading the plaintiffs’ New York breach of warranty claims, express and implied; breach…
Citing the settlement of similar class claims in a Florida court and plausibility issues, a federal court in California has dismissed with prejudice a putative class action alleging that companies misbrand products with an evaporated cane juice (ECJ) designation and sell products not meeting the standard of identity for yogurt and milk, including soymilk and almond milk. Ang v. WhiteWave Foods Co., No. 13-1953 (N.D. Cal., decided December 10, 2013). According to the court, the California plaintiffs, who filed their complaint after the class action was filed in Florida, were members of the class, knew about that settlement and had an opportunity to, but did not, object to it. Thus, the court found their ECJ and yogurt claims barred by res judicata. As for claims that consumers are confused by use of the terms “soymilk,” “almond milk,” and “coconut milk” in the names of Silk® products, an alleged violation of…
While Connecticut enacted legislation (H.B. 6527) in June 2013 requiring that foods containing genetically modified (GM) ingredients be labeled as such, once neighboring states have adopted similar laws, Governor Daniel Malloy (D) held a ceremonial bill signing in a health food café in Fairfield on December 11, 2013. Now known as Public Act 13-183, the bill’s provisions are summarized in Issue 486 of this Update. The governor said, “I am proud that leaders from each of the legislative caucuses can come together to make our state the first in the nation to require the labeling of GMOs. The end result is a law that shows our commitment to consumers’ right to know while catalyzing other states to take similar action.” See Press Release of Governor Daniel Malloy, December 11, 2013.
The European Food Safety Authority’s (EFSA’s) Panel on Food Additives and Nutrient Sources Added to Food (ANS) has published its full risk assessment on aspartame, concluding that the food additive is safe at current levels of exposure. In addition to noting that aspartame’s breakdown products— phenylalanine, methanol and aspartic acid—occur naturally in other foods, EFSA’s experts found that aspartame’s acceptable daily intake (ADI) of 40 mg/kg bw/day “is protective for the general population,” with the exception of those individuals with phenylketonuria, a medical condition that necessitates a diet low in phenylalanine. At the request of the European Commission, the ANS Panel analyzed “all available information” in an effort to resolve uncertainties related to the re-evaluation of aspartame as a food additive. In particular, the panel’s final scientific opinion assessed both human and animal studies submitted in response to public calls for data; previous evaluations; and additional literature that became available during…
The Federal Trade Commission (FTC) recently hosted a workshop on digital native advertising as part its effort to ensure that “consumers can identify advertisements as advertising wherever they appear.” Titled “Blurred Lines: Advertising or Content?,” the workshop examined “the practice of blending advertisements with news, entertainment, and other content in digital media,” bringing together publishers, marketers, consumer advocates, academics, and self-regulatory organizations to discuss: (i) “the ways in which sponsored content is presented to consumers online and in mobile apps”; (ii) “consumers’ recognition and understanding of it”; (iii) “the contexts in which it should be identifiable as advertising”; and (iv) “effective ways of differentiating it from editorial content.” Building on recent updates to FTC’s guidance on search engine advertising, dot com disclosures, and endorsements and testimonials, the workshop is reportedly the latest step in the commission’s efforts to ensure that digital advertisers conform to rules intended to help consumers distinguish between…
Due to the recent government shutdown, the U.S. Department of Health and Human Services (HHS) and U.S. Department of Agriculture (USDA) have rescheduled the second meeting of the 2015 Dietary Guidelines Advisory Committee for January 13-14, 2014. Among those on the agenda are HHS, USDA and Institute of Medicine representatives, committee members and Food Systems Consultant Kate Clancy, who will address “Dietary Guidelines and Sustainability.” The public will have an opportunity to speak, and those who registered to do so before the originally scheduled October 3-4, 2013, meeting “will retain their designation.” Those choosing to participate by Webcast or in person must register by January 6, 2014. Comments are requested either by December 31, 2013, or throughout the committee’s deliberative process. See Federal Register, December 9, 2013.
The U.S. Department of Agriculture (USDA) has terminated proceedings on a proposed marketing agreement that sought to regulate the handling of fresh leafy green vegetables in the United States. Modeled after a 2006 initiative pioneered by California growers in the wake of an E. coli outbreak linked to fresh spinach, the National Leafy Green Marketing Agreement (NLGMA) would have authorized “the development and implementation of handling regulations (audit metrics) to reflect the United States Food and Drug Administration’s (FDA) Good Agricultural Practices, Good Handling Practices, and Good Manufacturing Practices.” According to the California LGMA, which participated in the NLGMA effort, the proposed program became redundant under the Food Safety Modernization Act (FSMA), which requires FDA to regulate produce farmers “to ensure their products are safe.” To this end, the California LGMA recently submitted comments on FSMA’s proposed Produce Safety Rule, asking the FDA to consider certified LGMA members as compliant…
The U.S. Food and Drug Administration (FDA) has announced plans to phase out the use of certain antibiotics in food animals as part of its effort to reserve medically important drugs for the treatment of human infection. Noting that voluntary participation “is the fastest, most efficient way to make these changes,” the agency will partner with industry to discontinue the practice of adding these drugs to animal feed and drinking water as a growth promoter. To this end, FDA has issued final guidance that urges animal pharmaceutical companies “to voluntarily revise the FDA-approved conditions on the labels of these products to remove production indications,” in addition to proposing an updated veterinary feed directive (VFD) “to facilitate expanded veterinary oversight by clarifying and increasing the flexibility of the administrative requirements for the distribution and use of VFD drugs.” “The plan also calls for changing the current over-the-counter (OTC) status to bring…
The journal Food and Chemical Toxicology has announced the retraction of a controversial study purportedly linking genetically modified organisms (GMOs) to mammary tumors in rats. Led by University of Caen Molecular Biology Professor Gilles-Éric Séralin, the November 2012 study garnered public attention for reporting that female rats fed GM maize developed more mammary tumors than a control group raised on conventional feed. After further review, however, the journal’s editor-in-chief concluded that “both the low number of animals in each study group and the particular strain selected” were cause for concern. “A more in-depth look at the raw data revealed that no definitive conclusions can be reached with this small sample size regarding the role of either NK603 or glyphosate in regards to overall mortality or tumor incidence,” notes the journal’s retraction statement. “Given the known high incidence of tumors in the Sprague-Dawley rat, normal variability cannot be excluded as the…
