Authored by the director of legal initiatives at the Rudd Center for Food Policy and Obesity at Yale University, this article purports to demonstrate that food and beverage advertising to children is deceptive and misleading speech and therefore not protected under the First Amendment. According to the author, because this speech is not protected, the Federal Trade Commission (FTC) has the authority to restrict the industry’s marketing to youth. The article discusses scientific studies about the effects of advertising on children and analyzes court opinions addressing First Amendment and commercial speech issues. The author then contends, “If children under a certain age cannot understand that the communication is intended to persuade them, then this is a deceptive and misleading way to propose a commercial transaction to them. Because the marketing messages cannot be presented in a way in which they could understand the intent of advertising due to their limited cognitive…
Mini’s Cupcakes, Inc. has sued LuAnn’s Cupcakes, Inc. in a federal court in Utah, claiming the infringement of trade dress rights by LuAnn’s sale of cupcakes substantially the same in appearance as Mini’s gourmet “Breakfast at Tiffany’s” cupcake. Mini’s Cupcakes, Inc. v. LuAnn’s Cupcakes, Inc., No. 10-457 (D. Utah, filed May 14, 2010). The distinctive design allegedly features “vanilla cake, blue cream cheese frosting and silver and white gems. According to Mini’s, LuAnn’s “Tiffany Jewel” cupcakes are so similar that the “ordinary observer” will be confused about the origin of LuAnn’s product. The plaintiff alleges trade dress infringement, unfair competition, false designation of origin, passing off, and false advertising under federal law; common law unfair competition, misappropriation, and trade dress infringement under state law; and vicarious trade dress infringement against a supermarket that distributes the alleged infringing cupcakes. Mini’s seeks injunctive relief, an accounting of profits, compensatory damages, attorney’s fees, and…
Pennsylvania-based chocolate maker Hershey Co. has filed a Lanham Act lawsuit against Williams-Sonoma Inc., alleging that the kitchen product retailer is marketing and selling a baking pan that infringes Hershey’s “Chocolate Bar Design Mark,” a purportedly distinctive rectangle scored into 12 smaller rectangles. The Hershey Co. v. Williams-Sonoma, Inc., No. 10-1011 (M.D. Pa., filed May 12, 2010). According to the complaint, Hershey has been selling its chocolate bar for more than 100 years and registered its design in 1968. Hershey alleges that defendant’s unauthorized use of the design mark will cause confusion and that potential purchasers and consumers are likely to believe the infringing brownie pan is licensed by or affiliated with Hershey or its products. As an example of that confusion, the complaint quotes alleged online consumer comments about the baking pans: “you can make your own little hershey’s miniatures”; “It’s like a Hershey’s bar with individual brownies”; and “Whether you’re…
A Minnesota company that produces cheese has filed a complaint in federal court against an ingredients and flavorings company, alleging that it supplied a flavoring ingredient with phenolic compounds that “caused the cheese in which it was used to have a taste repugnant to certain of the customers who consumed the cheese.” Bongards’ Creameries v. Kerry Ingredients & Flavours, No. 10-2058 (D. Minn., filed May 14, 2010). According to the complaint, flavoring company representatives agreed that the cheese contained unacceptable levels of “off” flavors but refused to pay the cheese maker’s losses in excess of $1.3 million associated with the recall of 800,000 pounds of “contaminated cheese.” Alleging breach of implied warranties of merchantability and fitness for a particular purpose and breach of contract, the plaintiff seeks compensatory damages, attorney’s fees and costs.
The Ninth Circuit Court of Appeals has apparently denied the National Meat Association’s request that the entire court review a recent panel decision which lifted a preliminary injunction that prevented California from enforcing a law prohibiting slaughterhouses from taking, processing or selling nonambulatory animals. Additional details about National Meat Association v. Brown, No. 09-15483 (9th Cir. March 31, 2010), appear in Issue 344 of this Update. The National Meat Association indicated in a May 18 press release that it intends to ask the U.S. Supreme Court to review the matter.
According to news sources, both Philadelphia and the District of Columbia have failed to adopt taxes on sweetened beverages. Philadelphia’s mayor apparently never had a council majority to support his proposed soda tax and has now indicated that he will be forced to make cuts to police and fire department budgets and limit branch libraries to four-day weeks. A council member known as a leading administration critic reportedly characterized the mayor’s threat as “retribution.” In a related development, the D.C. Council has informally disapproved a proposal that would have taxed sweetened beverages sold in the district at one penny per ounce. The council member who proposed the tax wanted to use the revenue to fund a healthy school initiative that council has approved because the city’s financial officer has apparently indicated that funds are not available to implement it. The initiative reportedly requires schools to serve healthier food to address the…
Wisconsin Governor Jim Doyle (D) has reportedly vetoed a proposal (S.B. 434) that would have allowed farmers to sell unpasteurized milk and milk products directly to consumers. Doyle indicated in April 2010 that he would likely sign the bill, but ultimately decided that the potential health risks of consuming raw milk outweighed its alleged benefits. “I recognize that there are strong feelings on both sides of this matter, but on balance, I must side with the interests of public health and the safety of the dairy industry,” he said in his May 19 veto message. He added that an expert task force will stay abreast of the issue to “make certain that the concerns and interests on all sides are fully analyzed.” Raw-milk opponents like plaintiffs’ lawyer Bill Marler assert that sales of the unpasteurized products could lead to bacterial contamination outbreaks while advocates reportedly contend that unprocessed milk contains…
Health Canada has issued a proposed policy intent that would update current gluten-free labeling guidelines to reduce risks related to the accidental consumption of undeclared gluten and expand choices for consumers following a gluten-free diet. Gluten, a protein found in cereal grains such as wheat, barley and rye, can trigger the autoimmune disorder celiac disease (CD). Although oats do not contain gluten, food products containing oats currently cannot use the term “gluten-free” on labeling in the event they have been inadvertently contaminated with gluten from other grains during harvesting, processing or transportation. Since that policy was enacted, however, Health Canada has concluded that individuals with CD who can tolerate oats may benefit from consumption of uncontaminated oats (those “specifically produced to be free of gluten from other cereals”). The agency is accepting public comments until July 11, 2010. See Health Canada Website, May 10, 2010.
The Center for Digital Democracy and the Berkeley Media Studies Group have released a report, “Alcohol Marketing in the Digital Age,” that discusses some of the specific ways that alcohol beverage companies are conducting contemporary advertising campaigns using digital media, data collection, behavioral targeting, social media, and online gaming and video that allegedly appeal to underage youth. The report, which was reportedly submitted to the Federal Trade Commission (FTC), calls on that agency, as well as the state attorneys general, to “investigate the data collection, online profiling, and targeting practices of alcohol beverage companies online, including social media data-mining technologies. The FTC and other regulators need to determine whether alcohol beverage ad targeting is reaching specific young people and their networks.” While the report notes that beer and alcohol companies have “a self-regulatory code of ethics that includes provisions for limiting exposure to marketing messages to underage youth,” its authors…
New York University Professor Marion Nestle has announced the publication of Feed Your Pet Right, an extension of What to Eat that traces the evolution of commercial pet foods and recommends alternative diets. According to a May 10, 2010, Food Politics blog post, even those people without pets should pay attention to this $18 billion industry because “[p]ets eat the same food we do, just different parts… The safety issues are identical.” Written with Cornell University Professor Emeritus Malden Nesheim, the book turns a critical eye on the five major companies that produce pet food. The authors apparently explain “how pet foods are and are not regulated, how pet food companies influence government oversight and veterinary training and research, and how ethical considerations affect pet food research and product development.” In addition, they make recommendations for pet food owners, industry, government regulators, and veterinarians. Nestle also notes the similarities between…
