California residents have filed a putative class action against Whole Foods Market, alleging that the company misleads consumers by labeling certain snack products as “All Natural” because they contain “the synthetic chemical ingredient Sodium Acid Pyrophosphate, among other synthetic ingredients (e.g., Maltodextrin).” Garrison v. Whole Foods Mkt., Inc., No. 13-5222 (N.D. Cal., filed November 8, 2013). Seeking to certify statewide and nationwide classes, the plaintiffs claim that they relied on the truthfulness of the “product label’s promise that these Products were ‘All Natural,’” paid a price premium over products that are not all natural, “ingested a substance that was other than what was represented,” and “ingested a product that did not bring the health benefits Defendant promised.” The products at issue include mini muffins, soft-baked cookies and an array of gluten-free products, including apple pie, cheddar biscuits, corn bread, cookies, and cupcakes. While the plaintiffs mention various claims that the…
The Seventh Circuit Court of Appeals has ruled that a district court properly granted Kraft Foods a preliminary injunction against the sale of Cracker Barrel Old Country Store (CBOCS) food products in grocery stores under Kraft’s registered trademark name “Cracker Barrel.” Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., No. 13-2559 (7th Cir., decided November 14, 2013). The court agreed that consumers could be confused when viewing a CBOCS ham label on a grocery store shelf or in a store circular because the words “Cracker Barrel” were larger than “Old Country Store” and Kraft cheeses also carry the “Cracker Barrel” name. While the logos are not the same, the court said that some consumers might believe that both products were made by Kraft. The court weighed the respective harms to both companies and found the potential harm to Kraft greater, because it could be wrongly blamed…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has issued a notice of intent “to list emissions from high-temperature unrefined rapeseed oil as known to the State to cause cancer under the Safe Drinking Water and Toxic Enforcement Act of 1986” (Prop. 65). The proposal is based on the 2010 cancer identification by the International Agency for Research on Cancer (IARC) for “emissions created by frying food in unrefined rapeseed oil [commonly known as canola oil] heated past its boiling point.” IARC apparently found that these emissions “cause increased incidence of malignant tumors in female rats and combined malignant and benign tumors in both sexes of the mouse.” Comments are requested by December 16, 2013. See OEHHA News Release, November 15, 2013.
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has issued the tentative agenda for the December 5, 2013, meeting of its Carcinogen Identification Committee, which identifies chemicals for addition to the Proposition 65 list when they have been “clearly shown, through scientifically valid testing according to generally accepted principles, to cause cancer.” Under consideration will be butyl benzyl phthalate, a chemical used in food conveyor belts, and diisononyl phthalate, a plasticizer used in food-contact materials. The meeting will be webcast. See OEHHA News Release, November 14, 2013.
Legislation (H.B. 660) in Maine that would require food manufacturers to label products containing genetically modified (GM) ingredients is reportedly in jeopardy after New Hampshire lawmakers voted 12-8 against a similar labeling bill. Although Maine’s law passed earlier this year with broad bipartisan support, it can take effect only if five contiguous states pass similar laws. “I was not surprised,” said the New Hampshire bill’s sponsor Maureen Mann (D-Deerfield) in a news article. Evidently, while a subcommittee that spent the summer working on the bill recommended its approval, members of New Hampshire’s House Environment and Agriculture Committee expressed reservations about the measure, citing difficulties with enforcement because food labeling is a federal matter. According to sources, unlike in Maine, the vote in New Hampshire broke along party lines, with Republican committee members largely opposing it. Democrats have a 42-vote majority in the New Hampshire House, while Republicans have a two-seat…
The European Food Safety Authority (EFSA) has issued a statement finding that a published review of observational studies ultimately failed to establish a causal relationship between high intakes of phosphate additives in food and increased cardiovascular risk in the general population. In addition to considering the data on the association between serum phosphate levels and cardiovascular disease, the review in question apparently proposed a mechanism by which the metabolism of inorganic phosphate could contribute to vascular calcification, in the process suggesting that “intake of phosphate as a food additive, especially through consumption of processed and ready-to-eat food, is of particular concern.” Additional details about the review, which was initially published in the January 2012 edition of Deutsches Ärzteblatt International, appear in Issue 428 of this Update. After assessing these findings at the request of the European Commission, EFSA concluded that (i) the limitations of the observational studies included in the…
The U.S. Food and Drug Administration (FDA) has issued a request for comments on proposed revisions to its “Guidance for Industry: Studies to Evaluate the Utility of Anti-Salmonella Chemical Food Additives in Feeds.” With the aim of helping sponsors design efficacy studies to support the submission of food additive petitions (FAPs) related to preventing Salmonella in food for animals, FDA noted that a revision is necessary because science, technology and FDA policy have changed since the guidance was last revised. Because current guidance addresses only chemical food additives intended to maintain feeds or feed ingredients as Salmonella-negative, the agency intends to expand the scope to address other categories of food additives beyond chemical food additives and to cover all food for animals, including pet food. Among other things, FDA seeks comment on the following questions: (i) what intended technical effects will the agency see in FAPs for anti-Salmonella use of…
The U.S. Food and Drug Administration (FDA) has issued draft guidance for the food industry “to help growers, manufacturers and food service operators take steps to reduce levels of acrylamide in certain foods.” A chemical formed in some foods during high-temperature cooking, acrylamide has been characterized by the National Toxicology Program as “reasonably anticipated to be a human carcinogen.” Suggesting “a range of possible approaches to acrylamide reduction,” the draft guidance stops short of identifying a specific maximum level or action level for acrylamide, but includes recommendations for potato-based foods, cereal-based foods and other products. To reduce acrylamide formation during the cooking process, the draft guidance addresses what types of raw ingredients to use; how to transport, handle, store, and process ingredients; and how to prepare both fresh and par-cooked ingredients. In particular, FDA recommends, among other things, that the food industry (i) use certain kinds of potatoes and grains,…
According to Wall Street Journal reporter Mike Esterl, products with the “natural” or “all natural” label represented $40 billion in retail sales in the United States in the preceding 12 months and market researchers have found that more than 50 percent of Americans seek the “all natural” label when they shop for food. Still, food and beverage companies have begun “quietly removing” these words from their product labels under pressure from dozens of lawsuits filed during the past two years challenging the terminology as false and deceptive. Esterl notes that the litigation is complicated due to the Food and Drug Administration’s (FDA’s) decision not to define the terms. He observes that courts have, in recent months, stayed several of these lawsuits and referred questions to FDA about whether the “natural” designation can be used on products containing genetically modified (GM) ingredients. Details about the latest referral by a federal court…
The Yale University Rudd Center for Food Policy & Obesity has released an updated report on food advertising to children and teens that criticizes the fast-food industry for failing to meet its own marketing standards. Funded by the Robert Wood Johnson Foundation, “Fast Food FACTS 2013” claims that fast-food restaurants spent $4.6 billion on total advertising in 2012, an 8 percent increase over 2009. In particular, the report notes that even as “older children’s total exposure to fast food TV and internet advertising declined,” “fast food marketing via social media and mobile devices—media that are popular with teens—grew exponentially.” According to the Rudd Center, which reportedly surveyed the menus and marketing practices of 18 top fast-food restaurants in the United States, children aged 6-11 saw 10 percent fewer fast-food TV ads in 2012 compared to 2009, while many chains discontinued popular websites geared toward younger audiences. At the same time,…
