Former basketball star Shaquille O’Neal reportedly plans to endorse a new line of “low calorie sodas” that critics say promote obesity and other health problems. The Soda Shaq line is manufactured by AriZona beverages and will be distributed by convenience retailer 7-Eleven at stores nationwide. A press release announcing the product states that Soda Shaq contains no artificial flavors, colors or preservatives, is made with pure cane sugar and contains only 90 calories per serving, allowing fans to “satisfy their sweet tooth without the guilt from the very first clean and refreshing sip.” Consumer advocacy group the Center for Science in the Public Interest (CSPI), however, claims that each 24-ounce can of Soda Shaq contains three servings, or 270 calories, and 17 teaspoons of sugar per can. “Despite the implausible assertion on the label that the non-resealable vessel contains three servings, a single can of Soda Shaq cream soda contains…
A recently published law review comment contends that food makers should not be concerned that the Food Safety Modernization Act (FSMA) will increase food borne illness-related litigation or make it easier for plaintiffs to succeed. David Benton, “The Impact of Mandatory Recalls on Negligence and Product Liability Litigation Under the Food Safety Modernization Act,” San Joaquin Agricultural Law Review (2012-2013). The author opines that the FSMA “will likely have little or no impact on negligence and product liability litigation,” but recommends that manufacturers be given limited immunity from civil actions when they comply with a Food and Drug Administration voluntary recall request. He also recommends that the law be amended to expressly preempt state regulation, which would bring the FSMA closer in line with the Food, Drug, and Cosmetic Act as to medical devices.
According to a recently published law review note, health care reimbursement suits modeled on Canada’s Cost Recovery Act and provincial litigation against cigarette manufacturers could be successfully maintained against the food industry for the treatment of obesity-related illnesses. Timothy Poodiack, “The Cost Recovery Act and Tobacco Litigation in Canada: A Model for Fast Food Litigation,” Brooklyn Journal of International Law (2013). The note includes background on the country’s universal health care system, a comparison of issues faced by plaintiffs in U.S. suits against “fast food” companies to issues arising in tobacco litigation, “including assumption of the risk and causation arguments,” and an examination of how the Cost Recovery Act can rebut those arguments, “making the Act an attractive model for potential future food litigants in Canada.”
A California court has tentatively determined, following a 10-day bench trial, that the levels of lead in canned or packaged fruit, vegetable and grape drink products, or baby foods, are below the regulatory “safe harbor” exposure level under Proposition 65 (Prop. 65) and therefore that the companies which make them are not required to provide Prop. 65 warnings to consumers. Envtl. Law Found. v. Beech-Nut Corp., No. RG11 597384 (Cal. Super. Ct., Alameda Cty., tentative decision entered July 15, 2013). Because few Prop. 65 cases go to trial, the court was faced with a number of questions of first impression, primary among them application of the “naturally occurring” defense. The parties did not dispute the presence of lead in the products or that it has been identified as a known carcinogen and reproductive toxin under Prop. 65. Beech-Nut Corp., the original defendant, was joined at trial by a number of other…
Two California residents who filed a putative class action in a California federal court against, among others, a company that makes “Horizon,” “Silk,” “International Delight,” and “Land O’Lakes” brand products with labels including as an ingredient “evaporated cane juice” in alleged violation of Food and Drug Administration (FDA) requirements, have filed a complaint in intervention and motions to set aside a nationwide class settlement approved by a federal court in Florida. Singer v. WWF Operating Co., No. 13-21232 (S.D. Fla., filed July 12, 2013). According to the California plaintiffs, the Florida action was filed on April 8, 2013, as a statewide putative class action and then amended nine days later for purposes of securing preliminary approval of a nationwide class settlement. The California plaintiffs filed their putative statewide class action on April 29 and allege that they had extensive communications with defendant’s counsel who requested from them a 30-day extension…
A New York resident has filed a putative class action against Boar’s Head Provisions Co., alleging that the company’s advertising and labeling representations—“47% lower sodium,” “42% lower sodium,” and “40% lower sodium”—for some of its deli meats, including turkey breast and ham, contain as much sodium as its regular deli meat products and a higher percentage of sodium than stated when compared to U.S. Department of Agriculture (USDA) reference products. Mackles v. Boar’s Head Provisions, Co., Inc., No. 13-4855 (S.D.N.Y., filed July 12, 2013). According to the complaint, the defendant’s representations are inaccurate by a factor of more than 10 percent. The plaintiff also alleges that when he asked the company about the lower-sodium claims on its product labels, he received a letter stating that they “were submitted to and approved by the USDA.” On further investigation, the plaintiff allegedly learned from USDA that companies must ensure labeling accuracy, and…
A Hawaii resident has filed a putative nationwide class action against Cargill, Inc., alleging that the company falsely advertises its Truvia® sweetener product as “natural” when it is actually made from ingredients that are “either synthetic or harshly chemically processed.” Howerton v. Cargill, Inc., No. 13-0336 (D. Haw., filed July 8, 2013). According to the complaint, the company markets the product with “natural imagery such as the leaves of the stevia plant,” yet “the stevia-derived ingredient, Reb A, is not the natural crude preparation of stevia, but rather is a highly chemically processed and purified form of the stevia leaf extract,” and Reb A “comprises only 1% of Truvia.” The plaintiff alleges that “the main ingredient, erythritol, which Cargill also purports to be a natural ingredient derived through natural processes, is not made like it is in nature, but rather is synthetically made. Cargill describes the process of obtaining stevia…
A federal court in California has dismissed some of the consumer fraud claims filed against Chobani, Inc. in putative class litigation alleging that the company mislabels its yogurts as containing “evaporated cane juice,” misleads consumers by stating that its products do not contain added sugar and falsely states that its products are “all natural” because they contain artificial ingredients, flavorings, coloring, and chemical preservatives. Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal., order entered July 12, 2013). The court granted with leave to amend (i) the motion to dismiss as to the evaporated cane juice claims to the extent they are based on products not purchased by the plaintiffs; and (ii) the motion to dismiss the plaintiffs’ Unfair Competition Law (UCL), False Advertising Law (FAL) and Consumers Legal Remedies Act (CLRA) claims based on the “no sugar added” and “all natural” representations, finding that the plaintiffs did not sufficiently allege…
A federal court in California has dismissed without prejudice a putative class action alleging that Wholesoy & Co. misleads consumers by (i) listing “organic evaporated cane juice” instead of “sugar” or “dried cane syrup” as an ingredient on its soy yogurt products in violation of Food and Drug Administration (FDA) labeling rules, and (ii) marketing its soy product as yogurt because it fails to comply with FDA’s standard of identity for “yogurt.” Hood v. Wholesoy & Co., No. 12-5550 (N.D. Cal., decided July 12, 2013). The court agreed with the company that the complaint must be dismissed under the primary jurisdiction doctrine because its resolution would require the court to decide an issue committed to the agency’s expertise “without a clear indication of how FDA would view the issue.” Specifically, the court found that the evaporated cane juice guidance document on which the plaintiff relied is expressly “not a ‘legally…
The U.K. Advertising Standards Authority (ASA) has upheld two complaints alleging that a recent advertisement for Heineken beer “condoned or encouraged the consumption of alcohol in a football stadium within sight of the pitch, which was an illegal activity,” and “condoned or encouraged people to take glass bottles into a football stadium, which was not permitted.” The TV commercial in question apparently featured a man traveling to the UEFA Champions League final game, where he and a woman were shown taking a seat in view of the field and “clinking the two bottles of Heineken together in a celebratory fashion.” Although Heineken UK Ltd. described the ad as a “light-hearted” and “tongue-in-cheek” fantasy, ASA ultimately agreed with complainants that the final scene implied that the main characters “were going to consume beer during the football match.” “We considered that the ad could give the impression to viewers that such behavior,…
