A D.C. court has dismissed Bellion Spirits LLC's lawsuit aiming to compel the Alcohol and Tobacco Tax and Trade Bureau (TTB) to permit the company to market its products as containing "NTX, a proprietary blend of ingredients that they contend mitigates alcohol's damage to DNA." Bellion Spirits LLC v. United States, No. 17-2538 (D.D.C., entered August 1, 2019). TTB denied Bellion's application to make the health claims because it purportedly found inadequate substantiation after consulting with the U.S. Food and Drug Administration (FDA). Bellion filed suit, arguing that TTB could not work with FDA without express statutory authority. The court disagreed, finding that TTB has exclusive regulatory authority to make final decisions on alcohol, but nothing prohibits the agencies from consulting with each other. The court also dismissed Bellion's First Amendment argument, which maintained that its claims about NTX are true; the court noted that it must be deferential to…
A California federal court has denied Clif Bar & Co.'s motion to dismiss a putative class action alleging that its Clif bars contain high levels of sugar but are misleadingly marketed as healthful. Milan v. Clif Bar & Co., No. 18-2354 (N.D. Cal., entered August 20, 2019). The court disagreed with Clif's argument that the plaintiff's claims were preempted by federal laws on the display of nutritional information on food packaging, finding the provisions "of no moment here because plaintiffs are not challenging the nutrition information on the Clif bars' label." Further, the court declined to consider whether a "reasonable consumer would know that the challenged products contained added sugars" given the flavor names—including Chocolate Chip, Chocolate Brownie and Iced Oatmeal Cookie—because "the motion to dismiss stage is not the place to decide these questions of fact." "Clif is alleged to have marketed its bars using words and imagery designed…
A consumer has filed a putative class action alleging that Bacardi U.S.A. Inc.'s Bombay Sapphire is made with grains of paradise, amounting to adulteration under Florida law. Marrache v. Bacardi U.S.A. Inc., Filing No. 93932678 (Fla. Cir. Ct., 11th Jud. Cir., filed August 9, 2019). The complaint cites a Florida statute deeming the inclusion of grains of paradise—along with several other substances described as "poisonous or injurious to health," including opium, capsicum, laurel water and cochineal—in any liquor intended for consumption to be adulterated, amounting to a felony of the third degree. The plaintiff notes that the Bombay Sapphire bottle features an etching of 10 botanicals, including grains of paradise—which "has been used in other parts of the world for medicinal purposes including, without limitation, to treat impotence and to stimulate miscarriages when a pregnancy was unwanted."
NPR has published a writer's comparison of his experiences eating at restaurants in the United States and the United Kingdom while living with a peanut allergy. "Restaurants in the United Kingdom are generally far more vigilant, in this regard, than restaurants in the United States," the author observes. He recounts his experience being turned away from a U.K. restaurant after answering the server's question about food allergies by receiving a card explaining that the restaurant does "not operate in a surgical environment" and therefore could not guarantee that any of its menu items did not contain peanuts. "In America, the onus typically falls more on diners themselves," the author notes. "It's not routine, as it is in England, for servers to ask their customers proactively." The writer credits coverage of a U.K. teenager's death after eating a sandwich from Pret A Manger that was not labeled as containing sesame for…
The U.S. Food and Drug Administration (FDA) has issued the first warning letter enforcing the Food Safety Modernization Act (FSMA) Final Rule on Foreign Supplier Verification Programs (FSVP) for Importers of Food for Humans and Animals. The letter targeted a company importing tahini that was recalled after purportedly causing a Salmonella outbreak. "Moving forward, the FDA will take more steps to ensure compliance with FSVP, including reinspecting importers that had deficiencies in previous inspections and by acting immediately when FSVP deficiencies are found that pose an imminent public health risk," the agency's announcement stated.
The U.S. Food and Drug Administration's Office of Nutrition and Food Labeling has released guidance providing "step-by-step instructions to manufacturers of retail food products marketed in the United States on how they may convert the previous units of measure for certain nutrients to the new units in the updated Nutrition Facts label." The guidance also "provides information that can help manufacturers understand and comply with relevant labeling requirements," according to the agency's announcement.
California's Office of Environmental Health Hazard Assessment (OEHHA) has released the agenda for its September 19-20, 2019, symposium on synthetic food dyes. OEHHA is "conducting a risk assessment of the potential impacts of synthetic food dyes," focusing on dyes batch-certified by the U.S. Food and Drug Administration (FDA). The symposium, which can be attended in person or via webinar, will feature discussions of the toxicological studies used by FDA to evaluate synthetic food dyes as well as exposures to dyes in American adults' and children's diets.
Illinois has passed a law requiring businesses to indicate on food labels whether a product contains sesame. The amended law deems a food misbranded if "it contains sesame, is offered for sale in package form but not for immediate consumption, and the label does not include sesame." The state representative who sponsored the legislation told the NPR affiliate that his daughter is allergic to sesame and has received incorrect answers when inquiring about the ingredient at restaurants. “If they see us do it, the hope is that everyone does it,” he reportedly told WILL. “I hope that the [U.S. Food and Drug Administration (FDA)] and other states will follow suit." FDA and the U.K. Food Standards Agency have opened investigations into the prevalence of sesame as an allergen in prepared food products, while Canada, the European Union, Australia and Israel have reportedly enacted regulations requiring sesame labeling.
California regulators have reportedly indicated that they will ban the pesticide chlorpyrifos following the Environmental Protection Agency's (EPA's) refusal to ban the substance. “We have to step into the void and take action where the federal government has failed to do so,” the head of the state's environmental agency reportedly told The Los Angeles Times. The announcement also follows a lawsuit filed by California and five other states challenging EPA's decision. In Europe, the approval period for chlorpyrifos ends in January 2020, and the European Food Safety Authority has indicated—without issuing a formal decision—that it has "identified concerns about possible genotoxic effects as well as neurological effects during development, supported by epidemiological data indicating effects in children," according to a press release. "This means that no safe exposure level—or toxicological reference value—can be set for the substance."
The U.K. Advertising Standards Authority (ASA) has upheld a complaint that a television advertisement "perpetuated a harmful stereotype by suggesting that men were incapable of caring for children and would place them at risk as a result of their incompetence." The ad showed a father leaving a baby in a carrier on a conveyor belt as he examined his food options, including Philadelphia cream cheese products. Mondelez argued that it showed two men caring for their children and "took care to ensure the babies were not shown to be coming to any harm." ASA found the arguments persuasive, but it noted that the commercial featured the mother handing the child to the father at the beginning and the father saying "Let's not tell mum" to the child at the end. In this context, ASA found, "we considered the ad relied on the stereotype that men were unable to care for…
