Ocean Spray Cranberries Inc. has agreed to pay $5.4 million to settle claims that it misleadingly advertised its beverages as lacking artificial flavors despite containing malic avid. Hilsley v. Ocean Spray Cranberries Inc., No. 17-2335 (S.D. Cal., filed November 8, 2019). Under the agreement, the company will stop using the phrase "no artificial flavors" on its labeling or in other marketing materials within 12 months. Class members may receive $1 per bottle up to 20 bottles, and no proof of purchase will be required.
Two weeks after opening a comment period on an interim final rule on hemp farming, the U.S. Department of Agriculture (USDA) has received more than 600 comments. The rule set limits for the amount of tetrahydrocannabinol (THC) that can legally be produced by the crop, and farmers have reportedly told the agency that the limit is unmanageable. One issue is that the regulations do not acknowledge a difference between Delta-9 THC and THC-A, according to a former hemp farmer interviewed by Law360 who also reportedly said he had never seen a test result as low as the limit set by USDA. Another possible issue is that the crop must be tested by a laboratory registered with the Drug Enforcement Administration, which may reduce the number of qualified firms to a single laboratory. Comments on the interim final rule will be accepted until December 31.
The Center for Science in the Public Interest (CSPI) has released a report on television ads targeting children with food marketing. The organization assessed the advertisements shown during six hours of television airing on 12 channels that show children's programming and compared the results to a similar assessment from 2012. The comparison purportedly showed that the percentage of ads marketing food and beverages is up from 14% to 23%, and "two thirds of food and beverage advertisements during children’s television programming are unhealthy according to the food industry’s own [Children's Food and Beverage Advertising Initiative] standards and virtually all are unhealthy according to the more evidence-based, expert [Interagency Working Group] standards."
The American Olive Oil Producers Association has filed a citizen petition urging the U.S. Food and Drug Administration (FDA) to "promulgate regulations for the standards of identity for olive oil and olive-pomace oil." The lack of standard of identity has led to "widespread mislabeling of grades, adulteration, consumer mistrust, and unfair and unethical industry business practices," the petition asserts, and the "continued absence of an enforceable standard is harming consumers. Off the shelf product testing demonstrates that U.S. consumers are frequently misled by mislabeling of grades and marketing tactics that leave them unable to differentiate between high quality extra virgin olive oil and low-quality, old or rancid oils, as well as cheap by-products that are chemically and mechanically refined and colored to resemble olive oil." The petition urges FDA to regulate "various grades of olive oil"—"extra virgin olive oil, virgin olive oil, olive oil composed refined oils"—to "promote honesty and…
The European Food Safety Authority (EFSA) has published a scientific opinion on animal welfare considerations during the slaughter of poultry for food. The opinion provides a "comprehensive overview" of "the entire slaughter process from arrival and unloading of birds through stunning to bleeding and killing." The opinion also identifies hazards that "give rise to welfare issues—such as pain, thirst, hunger or restricted movement—and proposes preventive and corrective measures where possible." Many of the identified hazards relate to the lack of training in personnel; the "advice highlights the importance of staff being adequately trained in the different phases of slaughter and for clear identification of roles and responsibilities." The press release notes that EFSA will publish further opinions on animal welfare in slaughter for pigs, cattle and other species in 2020.
The Portman Group, a U.K. alcohol industry self-regulatory group, has upheld a complaint against the Bearded Brewery for the name of its high-alcohol cider, Suicyder. A member of the public complained about the beverage name's reference to suicide, calling Suicyder "clearly irresponsible" because it purportedly targets young men—"the group at highest risk of suicide"—and uses associated iconography, such as the tagline "juice from the noose." The company asserted that the "name of the cider was based on a wordplay with the intention being to indicate the strength of the alcohol content" and explained that the tagline was a reference to the founders' previous work with the Forestry Commission that required them to use a noose to dismantle unsafe trees. The panel was unpersuaded by tagline explanation, noting that "a consumer would have to understand this inside knowledge to displace the main connotation portrayed by the product name and imagery on…
Shook Food, Beverage & Agribusiness Practice Group Co-Chair Lindsey Heinz and Associate Elizabeth Fessler have authored an article for Law360 on a settlement between Kellogg Sales Co. and a plaintiff who alleged that the company's cereals were misleadingly marketed as "healthy." The settlement is "a prime example of the shifted focus toward sugar," they explain, "and the agreement may cause companies to question whether simply following regulations on sugar is worth the risk." Heinz and Fessler track how the U.S. Food and Drug Administration (FDA) has regulated the use of "healthy" to describe foods and provide an overview of the Kellogg case. "Although labeling claims may be consistent with regulations, the industry should be wary of making claims inconsistent with current thoughts on what constitutes a healthy food. While the cereals at issue were in line with the FDA’s definition and guidance on 'healthy' — which does not reference sugar…
The U.S. Department of Agriculture (USDA) has issued an interim final rule "specifying the rules and regulations to produce hemp." The rule outlines provisions for USDA "to approve plans submitted by States and Indian Tribes for the domestic production of hemp" and "establishes a Federal plan for producers in States or territories of Indian Tribes that do not have their own USDA-approved plan." Under the rule, hemp producers must obtain licenses, maintain "information on the land on which hemp is produced," comply with procedures for testing tetrahydrocannabinol concentration levels and dispose of non-compliant plants. The rule took effect October 31, 2019, and the agency will accept comments until December 30, 2019.
Reps. Roger Marshall (R-Kan.) and Anthony Brindisi (D-N.Y.) have introduced the Real Marketing Edible Artificials Truthfully (MEAT) Act, which would "codify the definition of beef for labeling purposes, reinforce existing misbranding provisions to eliminate consumer confusion, and enhance enforcement measures available to the [U.S. Department of Agriculture] if the [Food and Drug Administration] fails to take appropriate action," according to Marshall's press release. "The lack of any Federal definition of 'beef' or 'beef products' for the purposes of meat food product labeling has led some to begin marketing imitation products as meat or beef, creating the opportunity for marketplace confusion and consumer fraud that Congress originally charged the various Federal food regulatory agencies with the duty to prevent," the bill's text states. "Imitation products labeled as beef or as beef products create confusion in the marketplace. These products are in direct violation of the 'Congressional Findings and Declaration of Policy'…
The New York City Council has reportedly voted to ban the sale of foie gras produced from force-fed animals within the city, citing cruelty concerns. The law, which will take effect in 2022, will impose a $2,000 fine per violation and applies only to force-fed foie gras. "[D]etermining whether foie gras was illegally produced may present an enforcement challenge," The New York Times notes; "documentary" evidence will be required to show that foie gras was produced without force-feeding.
