As consumers prioritize animal welfare more highly when purchasing meat, more companies are claiming to hold their production facilities to high standards—and more plaintiffs are disagreeing. Advocacy groups have targeted multiple companies for their allegedly misleading marketing touting their humane housing or slaughtering practices. For example, the Organic Consumers Association and Food & Water Watch filed a lawsuit against Pilgrim's Pride Corp. challenging the conditions of its chickens in its production plants. Facing a similar lawsuit, Hormel Foods Corp. won summary judgment when the D.C. Superior Court found the Animal Legal Defense Fund's claims to be preempted by the U.S. Department of Agriculture. In addition, the European Court of Justice considered what slaughter methods could warrant an "organic" label, determining that cows must be stunned before they are slaughtered. The National Advertising Division also recommended changes to a marketing campaign following a complaint that Clemens Food Group used misleading language…

The dispute over the meaning of meat- and dairy-related terms continued in 2019, with more states passing bans on the use of terms implying animal-derived products, such as "burger" or "milk," to describe plant-based products. Nebraska, Arizona and Washington considered bans, and Arkansas' ban was targeted with a challenge from Tofurky that has resulted in a temporary injunction preventing the state from enforcing the statute against the company. Similarly, Mississippi proposed amendments to its meat-defining law after a "vegan bacon" and "vegan chorizo" company argued that the law "harms society." A Missouri court, meanwhile, denied the Good Food Institute's and American Civil Liberties Union's motion for a preliminary injunction to enforce the state's meat-labeling statute. In addition, a bipartisan bill introduced in November, the Real MEAT Act, would define meat-related terms if the U.S. Department of Agriculture and Food and Drug Administration (FDA) "fail[] to take appropriate action." The issue…

Allergen labeling grabbed headlines in the United Kingdom in 2019 as the country faced pressure from consumers concerned that prepackaged foods lacked mandated ingredient disclosures. Following the 2016 death of a teenager who consumed a premade sandwich packaged without notification of potential exposure to sesame, the U.K. Food Standards Agency launched a public consultation that resulted in the announcement of "Natasha's Law." Under the law, which will take effect in October 2021, restaurants and other food-service entities will be required to provide a full listing of ingredients on prepackaged food. In the United States, sesame is not an allergen that requires labeling, although the U.S. Food and Drug Administration (FDA) requested comments on the allergy's prevalence and severity in 2018. The New York Times called current U.S. regulations incomplete in January, and an August NPR article compared the two systems and found awareness of allergies in the United States lacking.…

U.K. researchers have published a meta-analysis in The BMJ asserting that physical activity calorie equivalent (PACE) labeling on food packaging "may reduce the number calories selected from menus and decrease the number of calories/grams of food consumed by the public, compared with other types of food labelling/no labelling." Daley et al., "Effects of physical activity calorie equivalent food labelling to reduce food selection and consumption: systematic review and meta-analysis of randomised controlled studies," The BMJ, December 10, 2019. The researchers identified 15 studies on PACE labeling and reportedly found that the technique may have caused the study participants to choose meals that contained 65 fewer calories on average compared to participants not exposed to PACE labels. "Most people eat three meals per day (plus two snacks); based on our findings for the number of calories consumed after exposure to PACE labelling (−65 calories), PACE labelling could potentially reduce calorie intake…

The Seventh Circuit has declined to revive a putative class action alleging that Fannie May Confections Brands Inc. misleads consumers as to the amount of chocolates contained in its boxes. Benson v. Fannie May Confections Brands Inc., No. 19-1032 (7th Cir., entered December 9, 2019). The court found that the plaintiffs suffered no "actual damage" as a result of Fannie May's allegedly misleading packaging. The plaintiffs "never said that the chocolates they received were worth less than the $9.99 they paid for them, or that they could have obtained a better price elsewhere," the court held. "That is fatal to their effort to show pecuniary loss. Moreover, their request for damages based on the percentage of nonfunctional slack-fill is quite vague. They do not explain how a percentage refund of the purchase price based on the percentage of nonfunctional slack-fill corresponds to their alleged harm. They thus failed to raise…

An Arkansas federal court has granted Turtle Island Foods SPC, which does business as Tofurky Co., a preliminary injunction preventing the enforcement against it of an Arkansas law prohibiting the use of meat-related terms to describe plant-based products on food packaging. Turtle Island Foods SPC v. Soman, No. 19-0514 (E.D. Ark., C. Div., entered December 11, 2019). The court found that Tofurky "likely faces ruinous civil liability, enormous operational costs, or a cessation of in-state operations" if the statute is enforced against it. The court granted the preliminary injunction despite Arkansas' indication that it "does not intend to begin enforcement" until the constitutional challenge is resolved because "there is nothing in the record binding the State to that position" and "the State has made no assurances that it will not levy retroactive penalties for Tofurky's alleged violations of Act 501 between the law's passage and this litigation's conclusion."

An Illinois federal court has dismissed a lawsuit alleging Wendy's International discriminates against disabled customers who cannot independently access 24-hour Wendy's locations during night hours when the stores only accept drive-through orders. Davis v. Wendy's Int'l LLC, No. 19-4003 (N.D. Ill., E. Div., entered December 12, 2019). The court held that the Wendy's policy applied to all pedestrians regardless of their disabled status. "[A]s with any other non-drivers, [the plaintiff] could access the drive-through if she were a passenger in a car sharing service, a taxi, or a friend's car," the court noted. "Therefore, the fact that [the plaintiff] cannot drive because of her visual impairment does not establish that Wendy's drive-through policies are the but-for cause for her inability to obtain food. [] Instead, it is her status as a pedestrian that is the but-for cause of her injury." The court dismissed the plaintiff's claim with prejudice.

The U.S. Court of Appeals for the Federal Circuit has dismissed a challenge to trade dress protection granted to Al Johnson's Swedish Restaurant & Butik Inc., a Wisconsin restaurant that features grazing goats on its rooftop, brought by an attorney who found the trade dress "demeaning to goats." Bank v. Al Johnson's Swedish Restaurant & Butik Inc., No. 19-1880 (Fed. Cir., entered December 9, 2019). The attorney argued that the trade dress of the restaurant, which includes a rooftop covered in grass and several goats grazing on it, is "offensive" and "denigrates the value he places on the respect, dignity, and worth of animals." The Trademark Trial and Appeal Board found this argument insufficient to establish standing; the Federal Circuit agreed and dismissed the appeal.

The U.S. Senate has voted to confirm Stephen Hahn as the commissioner of the U.S. Food and Drug Administration (FDA). Hahn, an expert in radiation oncology, reportedly promised to prioritize science, data and public health over political interests when directing the agency's policy.

The National Advertising Division (NAD) has found that Insurgent Brands LLC's RXBAR labels, which feature a brief list of ingredients on the front, communicate a substantiated claim about the main ingredients in the product and do not "convey misleading implied claims about weight and proportions of the protein bar inside." Kind Inc. challenged the labels, arguing that the labels—which primarily feature ingredients on a short, numbered list—do not imply that the list is in descending order by weight, as compared to the legally mandated ingredients list featured on the back of the packaging. NAD was unpersuaded by consumer perception surveys provided by Kind, finding "significant flaws" in the studies. The board noted that the listed "3 Egg Whites" on the front label are present in the product in the form of dehydrated egg white powder, as "appropriate for a packaged, shelf-stable bar." The board also found that "the dried egg…

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