During a recent meeting of the World Trade Organization’s (WTO’s) Technical Barriers to Trade (TBT) Committee, several member delegations expressed concerns about Chile’s proposed food health regulation amendments that would, among other things, require certain foods high in fat, sugar or salt to bear “STOP” sign-shaped warnings on 20 percent of the “main surface of the package.” The delegations, including Argentina, Canada, Colombia, the European Union, Guatemala, Mexico, Peru, and the United States, apparently contended that such requirements were not based on relevant Codex nutrition labeling guidelines, would create unnecessary barriers to international trade and had not been properly brought before the TBT Committee. Chile apparently responded that the proposal was intended to stem the tide of the obesity epidemic and that it was needed to provide readily understandable warnings on food products. In addition to stop sign warnings such as “high in salt,” “high in calories” or their equivalent,…
In an article titled “Snake Oil Salesmen or Purveyors of Knowledge: Off-Label Promotions and the Commercial Speech Doctrine,” Yale Law School Senior Research Scholar Constance Bagley and her co-authors critique the Second Circuit’s December 2012 determination in United States v. Caronia that Food and Drug Administration rules prohibiting prescription drug makers from promoting their products for off-label uses are unconstitutional under the First Amendment. According to the article, which will appear in a forthcoming issue of the Cornell Journal of Law and Public Policy, “this undue expansion of the Free Speech rights of commercial actors, if left unchecked” has the “potential to undermine the constitutionality of numerous areas of federal regulation,” including mandatory labels on food under the Nutritional Labeling and Education Act of 1990 and Food Allergen Labeling and Consumer Protection Act of 2004. The authors call for anchoring regulatory regimes in promoting the public good rather than individual…
New York City Mayor Michael Bloomberg has announced that the city’s request for an expedited hearing on its appeal of a court ruling striking down a limitation on the size of sugar-sweetened beverages sold in certain retail venues has been granted and that friend-of-the court briefs have been filed in support of the city’s appeal. The lead signatories to the amicus briefs are the National Alliance for Hispanic Health and National Association of Local Boards of Health. They were joined by 30 other organizations and health advocates, including the Harlem Health Promotion Center, Rudd Center, Public Health Law Center, and Northeastern University School of Law Professor Wendy Parmet. According to Bloomberg, “The organizations and individuals who have joined these amicus briefs understand the toll that obesity is taking on communities here in New York City and across the nation. Sugary drinks are a leading contributor to the obesity epidemic that…
Three California residents have filed a putative class action against food retailer Trader Joe’s in federal court, alleging three different types of misleading labeling claims: using the terms “evaporated cane juice” or “organic evaporated cane juice,” identifying as “natural” or “no added coloring or preservatives” foods that contain added preservatives and artificial colors, and representing non-dairy calcium products as “milk.” Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., filed March 25, 2013). The plaintiffs claim that the company’s “labeling, advertising and marketing as alleged herein are false and misleading and were designed to increase sales of the products at issue. Defendant’s misrepresentations are part of an extensive labeling, advertising and marketing campaign, and a reasonable person would attach importance to Defendant’s misrepresentations in determining whether to purchase the products at issue.” The complaint outlines the applicable Food and Drug Administration (FDA) regulations that the defendant allegedly violated, noting that…
The Animal Legal Defense Fund (ALDF) and Compassion Over Killing have reportedly filed a complaint in a California federal court against the Food and Drug Administration, U.S. Department of Agriculture and Federal Trade Commission claiming that the agencies have failed to regulate animal-welfare labeling on egg cartons. According to ALDF, rulemaking petitions were filed in 2006 and 2007 asking for egg production methods to be fully disclosed on every carton of eggs sold in the United States. The agencies have not only allegedly failed to take action on these requests, they have also apparently failed to take action against “the often-misleading claims and deceptive imagery widely found on egg cartons.” The plaintiffs seek a court order requiring the agencies to adopt rules that would mandate that producers clearly label their egg cartons with egg production methods, including “Eggs from Caged Hens.” See ALDF News Release, March 28, 2013.
A federal court in California has dismissed with prejudice a complaint filed by groups concerned about ducks force-fed to produce foie gras against the U.S. Department of Agriculture (USDA) and its Food Safety and Inspection Service (FSIS), seeking to compel FSIS to ban force-fed foie gras from the human food supply as adulterated and diseased. Animal League Def. Fund v. USDA, No. 12-4028 (U.S. Dist. Ct., C.D. Cal., decided March 22, 2013). FSIS denied a petition to take such action, and the plaintiffs filed the lawsuit to challenge the legality of that denial under the Administrative Procedure Act. According to the court, while an agency’s denial of a petition for rulemaking can be challenged in court, the plaintiffs here did not ask FSIS to promulgate a new rule. “Though titled ‘PETITION FOR RULEMAKING,’ Plaintiffs’ request seeks to ban force-fed foie gras under existing law and regulations: it is not a…
According to a news source, U.K. High Court Justice Michael Briggs has ordered New York-based Chobani to change its “Greek” yogurt labels, finding that they mislead more than 50 percent of British consumers into believing that it was made in Greece. Company rival Fage brought the lawsuit to “restrain Chobani from passing off its American-made yoghurt in England and Wales under the description Greek yoghurt.” The court apparently determined that “the very small print used on the rear of Chobani’s pots” stating that the products are made in the United States was “nowhere near sufficient” to alert people to their true origin. Chobani claimed that the “Greek” designation was a reference to how the product is made and not to its country of origin. Danone, which also makes the thickened, strained yogurt products, reportedly indicated that it was considering the implications of the ruling; it was temporarily barred in the…
Mississippi Governor Phil Bryant (R) has signed legislation (S.B. 2687) prohibiting food regulation at the local level. Dubbed the “anti Bloomberg” bill by some lawmakers and media outlets, the new law reserves for the state legislature the power to regulate consumer incentive items, implement menu and vending machine labeling rules, and set other restrictions on the sale of certain foods and beverages where not preempted by federal law. Additional details about the measure appear in Issues 472 and 475 of this Update.
A sugar-sweetened beverage tax proposal (S.B. 622) introduced in February 2013 by Sen. Bill Monning (D) and co-sponsored by the California Center for Public Health Advocacy, is scheduled for public hearing on April 24, 2013. The proposed legislation would impose a 1 cent per fluid ounce tax on sugar-sweetened beverages to finance a Children’s Health Promotion Fund that would pay for a statewide childhood obesity prevention program and apply to all sugar-sweetened beverage distributors whether their products are bottled or sold as concentrate. “This bill will combat the obesity crisis and ensure that our children—and future generations of Californians—are not doomed to a shorter life expectancy and can instead live longer, healthier lives,” Monning has been quoted as saying. Details about S.B. 622 appear in Issue 473 of this Update. See Los Angeles Times, February 26, 2013.
The U.K. Advertising Standards Authority (ASA) has declined to uphold five complaints claiming that Nestlé UK Ltd.’s TV advertisements for Nesquik chocolate milkshake “encouraged poor nutritional habits by suggesting the product was suitable to give to children for breakfast on a daily basis.” According to ASA, the complaints described the product as high in sugar and thereby unsuitable for daily consumption. But Nestlé countered that a typical serving of Nesquik milkshake could not “be described as being ‘high’ in sugar” as “46% of total sugar in the product, as consumed, was attributed to the naturally occurring lactose found in milk, and not to the Nesquik product.” In addition, Nestlé explained, the sugar that could be attributed to the product still met World Health Organization guidance stating that NonMilk Extrinsic Sugars should contribute less than 10 percent daily energy to children’s diets. “Nestlé also said the new EU Pledge nutrient profiling criteria…
