In response to evidence that British children appear to be getting fatter, the Academy of Medical Royal Colleges in London has reportedly recommended imposing a 20 percent tax on sugary soft drinks for one year as an experiment to see whether it reduces consumption by kids. The group has also called for a ban on TV ads for foods high in saturated fats, sugar and salt until 9 p.m., and has suggested that the government develop “formal recommendations on reducing the proximity of fast food outlets to schools, colleges, leisure centers and other places where children gather.” Meanwhile, the British Soft Drinks Association and other industry groups have publicly opposed such steps, claiming that most soda sold in Britain does not contain added sugar and that a new tax would hurt consumers who can “ill afford it.” The country’s Food and Drink Federation has also contended that existing restrictions on TV ads…
The University of San Francisco Law Review has published a student comment titled “Snake Oil in Your Pomegranate Juice: Food Health Claims and the FTC,” that examines existing statutes and regulatory authorities enabling the Federal Trade Commission (FTC) and Food and Drug Administration (FDA) to regulate the burgeoning “functional food” market. 47 U.S.F.L. Rev. 783. The author focuses on litigation involving health claims made by the manufacturers of POM Wonderful® pomegranate juice products, noting that the industry has been watching it closely to learn what standards will be applied to the science supporting health-related claims thus allowing companies to make such claims. According to the author, the case illustrates why the current regulatory framework is inadequate. She concludes, “If case-by-case litigation continues to define the parameters of permissible claims, consumers will continue to be misled, and all brands will pay the price.”
According to a news source, the federal court that heard a challenge to the U.S. Department of Agriculture’s (USDA’s) revision to its country-of-origin labeling (COOL) rules to comply with a World Trade Organization ruling stated during the hearing that it would issue a decision on the plaintiffs’ request for a preliminary injunction within 14 days. Am. Meat Inst. v. USDA, No. 13-1033 (D.D.C., oral argument held August 27, 2013). Additional information about a dispute that has split trade associations representing different parts of the meat production industry appears in issues 490 and 495 of this Update. The organizations seeking the injunction reportedly argued that “[t]his is a regulation the agency concedes is a de minimis benefit . . . for a de maximus cost.” They contend that the new rules violate their First Amendment rights and could put them out of business. A USDA attorney apparently argued that the new…
The Mexican brewer that makes Dos Equis® beer and has advertised it with a distinctive campaign since 2007 has brought a trademark and copyright infringement lawsuit against a New Jersey-based company and its president for an advertising campaign that allegedly mimics the brewer’s “Most Interesting Man in the World®” ads. Cervezas Cuauhtémoc Moctezuma, S.A. de C.V. v. KCI, Inc., No. 13-5044 (D.N.J., filed August 22, 2013). According to KCI’s LinkedIn page, the company offers storage area network (SAN) maintenance services. The complaint alleges that defendants have filed trademark applications for and use in a YouTube video the marks “The Most Interesting SAN Architect in the World” and “I Don’t Always Use Third Party Companies When I Buy and Maintain SAN Equipment But When I Do It’s Always Team KCI . . . Stay Convergent My Friend.” This compares with the brewer’s registered marks “The Most Interesting Man in the World” and…
A federal court in Illinois has refused to certify a multistate class of consumers who were allegedly deceived under the consumer protection statutes and unjust enrichment laws of eight named states by a company that, at one time, either misrepresented or failed to indicate that its single serving coffee product contained “instant” or “soluble” coffee rather than fresh ground coffee and a filter. McManus v. Sturm Foods, Inc., No. 11-565 (S.D. Ill., order entered August 26, 2013). According to the court, the class, defined as all consumers in the eight states who purchased the product from September 2010 until the present, included many who had no injury or had not relied on any product representations. Among the putative class members were individuals who (i) knew that the product was instant coffee and bought it anyway because it made no difference to their purchasing decision, (ii) purchased the product after the…
A federal court in California has denied the motion to dismiss filed by J.M Smucker Co. in a putative class action alleging that it misleads consumers by labeling four of its Crisco® oil products as “All Natural” because they are purportedly made with genetically modified (GM) corn, canola and soy crops and because they are highly processed. Parker v. J.M. Smucker Co., No. 13-690 (N.D. Cal., order entered August 23, 2013). Finding that the amended complaint met the plausibility pleading standard, the court ruled that the plaintiff had standing to pursue claims as to products she had not purchased because they were sufficiently similar. In the court’s view, “They are all the same kind of product. They all have highly similar labels. Plaintiff alleges the same actionable conduct as to each of them.” The court also rejected the defendant’s contention that the claims were preempted in light of the Food…
A federal court in California has narrowed the issues in litigation filed by Monster Beverage Corp. against Dennis Herrera, San Francisco’s city attorney, granting in part and denying in part Herrera’s motion to dismiss. Monster Beverage Corp. v. Herrera, No. 13-786 (C.D. Cal., order entered August 22, 2013). Additional details about the dispute between the litigants appear in issues 461, 482 and 483 of this Update. The court rejected Herrera’s claims that Monster Beverage lacked standing to bring a declaratory judgment action as to issues raised by his threats to sue the company if it fails to change its energy drink products by reducing the caffeine levels and to alter its labeling and advertising. The court also found that the issues are ripe, stating “The dispute here is not abstract and the lawsuit is not premature. The issue here, whether Monster must comply with Herrera’s demands pursuant to California state…
A multidistrict litigation (MDL) court in New York has granted in part the motion to dismiss filed in a putative class action alleging that Frito-Lay North America and PepsiCo., its parent, mislead consumers by labeling various Tostitos®, SunChips® and Fritos Bean Dip® products as “all natural” when they contain genetically modified organisms (GMOs). In re Frito-Lay N. Am., Inc. All Natural Litig., MDL No. 2413 (E.D.N.Y., order entered August 29, 2013). The court dismissed PepsiCo, Inc. from the litigation without prejudice, finding that the complaint failed to allege sufficient facts to support its liability. Among other matters, the court refused to dismiss the suit on the basis of (i) the primary jurisdiction doctrine (noting that the issues do not require specialized knowledge to resolve and that “the FDA [Food and Drug Administration] is unlikely to respond in a timely manner to any referral from this Court”), (ii) preemption (finding that FDA’s…
The U.K. Food Standards Agency has reportedly issued a nationwide warning about misleading and illegal claims for manuka honey, a product derived from the manuka tree in southeastern Australia and New Zealand and endorsed by many celebrities who claim that it contains unique anti-bacterial and medicinal properties. According to news sources, manuka honey commands prices 10 to 20 times higher than other types of honey. Tests by the U.K. Food Environment Research Agency (Fera), New Zealand’s Unique Manuka Factor Honey Association (UMFHA) and others, however, suggest that many of the products labeled “manuka honey” contain none of its unique active properties, prompting industry leaders to demand a crackdown on a “potentially huge fraud.” Industry data have apparently revealed that New Zealand—the main source of manuka honey—produces only 1,700 tons of the honey each year, while consumption data show that an estimated 10,000 tons is sold worldwide annually, with 1,800 tons…
The European Chemicals Agency (ECHA) has announced a public consultation seeking feedback on a proposal submitted by the French Agency for Food, Environmental and Occupational Health and Safety (ANSES) to reclassify bisphenol A (BPA) based on its alleged reproductive toxicity. According to ECHA, the proposal would upgrade the harmonized classification and labeling (CLH) of BPA from reproductive toxicity category 2 (hazard statement code H361f, “suspected of damaging fertility”) to reproductive toxicity category 1B (hazard statement code H360F, “may damage fertility”). “France welcomes any new classification proposal for other endpoints such as carcinogenicity, development or lactation but believes that the emergency for regulating BPA is high enough justifying targeted CLH report and ATP inclusion at [sic] the first place,” states ANSES in its dossier, which includes an evaluation of BPA studies published since the last CLH evaluation was undertaken in 2002. In addition, ECHA has emphasized that the current public consultation…
