A federal court in California has dismissed certain claims, with leave to amend, in putative class litigation challenging various aspects of labels for Wallaby Yogurt Co. and Trader Joe’s Co. food products; it has refused to abstain from deciding the matters under the primary jurisdiction doctrine. Morgan v. Wallaby Yogurt Co., Inc., No. 13-296, Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., orders entered October 10, 2013). Both suits include claims, among others, that the companies mislead consumers by using “evaporated cane juice” instead of “sugar” on their product labels. In Wallaby, the court rejected the defendant’s argument that the plaintiffs lacked standing to bring their claims because they had not plausibly alleged actual injury. Wallaby apparently said, “Plaintiffs paid for food products. They consumed the products without incident or physical injury. The goods were not tainted, spoiled, adulterated, or contaminated. They do not allege that the ingredients were…
A federal court has dismissed without prejudice the first amended complaint filed in a putative class action alleging that Weight Watchers International misleads consumers by misrepresenting the number of calories in its line of diet ice cream bars. Burke v. Weight Watchers Int’l, Inc., No. 12-6742 (D.N.J., decided October 17, 2013). While the court held that it was premature to decide whether the plaintiff had standing to bring claims as to diet bars she did not purchase, persuaded by other courts that this was more properly decided at the class certification stage, it agreed with the defendants that the state law-based claims were preempted. The Food and Drug Administration has set forth the five methods that can be used to calculate the total number of calories in a food product labeled with that information. In the court’s view, “Burke’s claims are preempted because she has failed to plead two separate…
A California appeals court has affirmed the dismissal with prejudice of a putative class action alleging that Kroger Corp. misled consumers by failing to comply with federal and state law requirements for labeling its Challenge® spreadable butter products. Simpson v. The Kroger Corp., No. B242405 (Cal. App. Ct., decided September 25, 2013). The court found that the labeling requirements of the state Milk and Milk Products Act of 1947 were not identical to federal labeling requirements, and thus claims based on the Act were preempted. And while the court found that the plaintiff’s mislabeling claims under the state Sherman Food, Drug and Cosmetic Law were not preempted, it ruled that the trial court did not abuse its discretion in denying leave to amend the complaint, because “as a matter of law, plaintiff has failed to demonstrate that a reasonable consumer would be misled by the labels on the products.” Noting…
According to media sources, the campaigns for and against a proposed 1-cent per ounce excise tax on all sugar-sweetened beverages (SSBs) sold in Telluride, Colorado, have stepped up their efforts in advance of November voting. Primarily funded by a Houston-based hedge fund, which donated $50,000 to the cause, “Kick the Can Telluride” has reportedly taken its lead from similar campaigns in El Monte, California, and Richmond, Virginia, and urged local voters to back ballot measure 2A, claiming that the estimated annual revenues of $200,000 would support youth health initiatives now funded by three-year U.S. Department of Education Physical Education Program grants. “If passed, the measure would be the first town-level excise tax on sugar-sweetened beverages in the United States,” reports The (Telluride) Watch in an October 16, 2013, article about the debate. Meanwhile, the Colorado Beverage Association has apparently joined with local business owners in countering the proposal with its…
The European Commission-Joint Research Centre and Institute of Food Safety of the University of Wageningen in The Netherlands, at the request of the European Food Safety Authority, have issued a two-part survey regarding nanomaterials in agri-food-feed applications that aims to collect information about (i) the current and potential future use of nanomaterials or nanotechnology in agri-food-feed applications, and (ii) regulation, safety assessment and reporting of nanomaterials in different countries. The first part of the survey focuses on the “Production, Use, Import, Research and Development of Nanomaterials in Agri-Food-Feed Applications” and is addressed to (i) companies that produce, import or use the materials in such applications, and (ii) research institutes, research and development departments of industry, or others active in research and development of materials or products containing nanomaterials in agri-food-feed applications. The second part of the survey focuses on the “Regulation and Safety Assessment of Nanomaterials in Agri-Food-Feed Applications” and…
A recent study asserts that the energy and sodium content of main entrées served in U.S. chain restaurants has remained unchanged over a one-year period, despite the enactment of federal regulations requiring menu labeling. Helen Wu & Roland Sturm, “Changes in the Energy and Sodium Content of Main Entrées in US Chain Restaurants from 2010 to 2011,” Journal of the Academy of Nutrition and Dietetics, October 2013. Relying on data collected from chain restaurant Websites between spring 2010 and spring 2011, the study’s authors noted that “mean energy and sodium did not change significantly overall, although mean sodium was 70 mg lower across all restaurants in added vs removed menu items at the 75th percentile.” They also reported that even though fast-food chains reduced the mean energy in children’s menu entrées by 40 kcal, the adult-sized dishes with reduced sodium levels “far exceeded recommended limits,” while not all significant changes…
UC Davis Health System researchers have reportedly identified “a biological pathway that is activated when blood sugar levels are abnormally high and causes irregular heartbeats, a condition known as cardiac arrhythmia that is linked with heart failure and sudden cardiac death.” Jeffrey Erickson, et al., “Diabetic hyperglycaemia activities CaMKII and arrhythmias by O-linked glycosylation,” Nature, October 2013. According to a recent press release, the study’s authors apparently found the biological link after conducting “detailed molecular experiments” using rat and human proteins and tissues, including “assessments of whole heart arrhythmias with optical mapping in isolated hearts and in live diabetic rats.” The results evidently showed “that the moderate to high blood glucose levels characteristic of diabetes caused a sugar molecule (O-linked N acetylglucosamine, or O-GlcNAc) in heart muscle cells to fuse to a specific site on a protein known as calcium/calmodulin dependent protein kinase II, or CaMKII.” This fusion with O-GlcNAc…
“The food industry is spending almost $2 billion a year marketing directly to children and teens,” opines food industry critic Anne Lappé in an October 2, 2013, interview with Mother Jones that focuses on her latest project, Food MythBusters. Discussing a range of topics from genetically modified organ- isms to food marketing and farm labor practices, Lappé not only argues that the food industry “has infiltrated all aspects of our children’s lived experience, including their experience at school,” but claims that legal restrictions on food marketing and advertising are necessary to protect children’s health. She also criticizes the industry’s move toward self-regulation, alleging that such initiatives have already failed. “Diet-related illnesses are causing nearly as many deaths as tobacco-related illnesses, not to mention the impact on quality of life when you start to develop adult-onset diabetes as a child, or all these other diet-related illnesses,” concludes Lappé, whose Food MythBusters…
The Natural Resources Defense Council (NRDC) and the Harvard Food Law and Policy Clinic have co-authored a September 2013 report claiming that the date label used on food products “is a key factor” in unnecessary food waste. Titled The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America, the report focuses on the lack of federal standards for date labels such as “use by,” “best before,” “sell by,” and “enjoy by,” arguing that the variability in state and local rules sows confusion among consumers, undermines the system’s goal of providing accurate indicators of freshness and harms both manufactures and retailers “by creating increased compliance burdens and food waste.” To combat these problems, the report recommends that stakeholders “standardize and clarify the food date labeling system across the United States” by establishing “a reliable, coherent, and uniform consumer-facing dating system” that clearly differentiates between “quality-based” and “safety-based” date…
Corporate Europe Observatory (CEO) recently joined a coalition of nongovernmental organizations in criticizing the European Food Safety Authority (EFSA) ahead of the agency’s October 3, 2013, stakeholder meeting on transparency in risk assessment. Led by CEO and backed by groups such as Cancer Prevention and Education Society, Friends of the Earth Europe and GMWatch, the coalition argues in an October 1 open letter that EFSA’s current system for approving food products for market is flawed insofar as the agency’s decision-making process relies on confidential dossiers submitted by industry. In particular, the signatories claim that under international and EU law, EFSA must disclose the contents of these dossiers and should also ensure that the studies used to support its market approvals adhere to the same high standards as those set by peer-reviewed journals. To this end, the coalition recommends that EFSA provide “complete, unrestricted and proactive online publication of applicants’ files,”…
