A federal court in Illinois has dismissed claims that Coca-Cola labeling for its “classic” and “original formula” soda products violated consumer fraud laws because the products contain high fructose corn syrup (HFCS), which did not exist when the beverage was first sold in the 1880s. Kremers v. Coca-Cola Company, No. 09-333 (S.D. Ill., decided April 27, 2010). One named plaintiff in this putative class action apparently testified during her deposition that she knew the products contained HFCS as early as the 1990s. The court found the litigation time-barred as to her claims. Another named plaintiff testified that he did not realize the product’s label included the phrase “original formula” until counsel brought it to his attention. The court found that he failed to establish an essential element of his deception claim. Because both testified that they continued to buy the product despite knowing that its sweetener differed from the formulation sold…
The Fourth Circuit Court of Appeals has turned aside a First Amendment challenge to a state law restricting advertisements for alcoholic beverages in college student publications. Educ. Media Co. v. Swecker, No. 08-1798 (4th Cir., corrected decision filed April 19, 2010). The restrictions at issue did not allow advertisements for alcohol in any college publication distributed primarily to students younger than 21, but did allow dining establishment advertisements in those publications to refer to alcohol. The student-run newspapers challenging the restrictions claimed that they were losing tens of thousands of dollars in ad revenues annually because of the restrictions, which they contend do not advance the government’s interest in combating underage drinking. The court found sufficient evidence in the record to link decreasing demand for alcohol by college students with the advertising restrictions, citing in particular the inimitable role that student publications play on campus and “the fact that alcohol…
Oral argument in litigation over whether the U.S. Department of Agriculture (USDA) properly deregulated a genetically engineered (GE) alfalfa seed took place before the U.S. Supreme Court on April 27, 2010. Monsanto Co. v. Geertson Seed Farms, No. 09-475 (U.S.). The Ninth Circuit imposed a ban on use of the GE seed until the USDA completes an environmental impact statement that accounts for potential contamination of conventional alfalfa crops. While several justices questioned the appellate court’s authority to fully ban the product’s sale, Justice Antonin Scalia contended that GE crop planting “doesn’t even destroy the current plantings of non-genetically engineered alfalfa. This is not the end of the world. It really isn’t. The most it does is make it difficult for those farmers who want to cater to the European market, which will not accept genetically engineered alfalfa.” According to press reports, environmentalists and agribusiness, watching the case closely, filed…
The California county that helped lead the national push for menu labeling has reportedly approved an ordinance (NS-300-820) that would prohibit restaurants from using “incentive items” to promote meals deemed high in calories, salt or fat. The Santa Clara County Board of Supervisors apparently voted 3-2 on April 27, 2010, to set nutritional standards for restaurant food that comes with such giveaways as toys, games, trading cards, admission tickets, or any other consumer product, “whether physical or digital.” The measure declares that restaurants cannot link incentives to (i) meals that exceed 485 calories or 600 milligrams (mg) sodium; (ii) single food items that exceed 200 calories or 480 mg sodium; or (iii) beverages that contain caffeine, added nonnutritive sweeteners or more than 120 calories, or derive more than 35 percent of their total calories from fat or 10 percent from added caloric sweeteners. In addition, meals or food items offering…
The U.S. Customs and Border Protection (CBP) and the Consumer Product Safety Commission (CPSC) have apparently agreed to share safety information on imported goods, including foods and pharmaceuticals. The two agencies on April 26, 2010, signed a memorandum of understanding that grants CPSC “the capability to conduct import safety risk assessments and perform targeting work using CBP’s Automated Commercial System.” The new partnership aims to identify potentially dangerous imports before they enter the country, according to a concurrent CBP press release. The alliance is the latest formed under the auspices of CBP’s Import Safety Commercial Targeting and Analysis Center (CTAC). Established after President Barack Obama’s (D) Food Safety Working Group urged widespread reform, CTAC is an interagency effort that draws on shared resources, analysis and expertise “to protect the American public from harm caused by unsafe imported products.” The new facility is staffed with 30 personnel from CBP, CPSC and…
The National Milk Producers Federation has filed a petition with the Food and Drug Administration (FDA), calling on the agency to “significantly increase enforcement efforts to prevent the misbranding of certain food items that are imitations of standardized dairy products.” The federation claims that soy-, hemp-, almond- and rice-based products are marketed to consumers as “milk,” “cheese,” “ice cream,” and “yogurt,” but “do not meet the legal standard of identity for those standardized dairy products.” The petition cites several FDA warning letters sent to producers of products advertised as milk or cheese but not containing any “milk,” defined by federal law as the “lacteal secretion, practically free of colostrums, obtained by the complete milking of one or more healthy cows.” The federation contends that FDA’s lack of enforcement has resulted in the “traditional retail dairy case” becoming “a chaotic center of misbranded products and false and misleading labeling,” that threatens…
The Food and Drug Administration (FDA) has established a docket to obtain comments and other data related to point-of-purchase nutrition information, including front-of-pack (FOP) labeling and shelf tags. According to an April 29, 2010, press release, FDA wants to learn more about (i) “the extent to which consumers notice, use and understand nutrition symbols” on these types of labels; (ii) “research that assesses and compares the effectiveness of particular approaches to front-of-pack labeling”; (iii) “graphic design, marketing and advertising data and information that can help develop better point-of-purchase information”; and (iv) “how point-of-purchase information may affect decisions by food manufacturers to reformulate their products.” The agency will use this feedback to inform its deliberations about “approaches to enhancing the usefulness to consumers of point-of-purchase nutrition information.” The docket is part of ongoing efforts to reassess FOP regulations under the Nutrition Labeling and Education Act of 1990. FDA has stated that…
Without a Senate-confirmed leader for the U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS), target dates for ongoing rulemakings have apparently slipped in recent months. In January 2010, President Barack Obama (D) nominated Elisabeth Hagen to serve as USDA’s Under Secretary of Agriculture for Food Safety, but the Senate has failed to act on the nomination. According to USDA’s April 26, 2010, semiannual regulatory agenda, FSIS, which is responsible for the safety of meat, poultry and egg products, has completed only one rulemaking over the past six months, missing all 11 target dates set in its October 2009 agenda. Among the agency’s pending rules is a pathogen-reduction performance standard for all ready-to-eat and partially heat-treated meat and poultry products to control Listeria monocytogenes. It was initially proposed in 2001. See Federal Register, April 26, 2010; OMB Watch, April 28, 2010.
The U.S. Department of Agriculture’s (USDA’s) National Organic Program (NOP) has announced that its 2006 decision approving the fortification of organic infant formula and organic milk products with synthetic omega-3 fatty acid DHASCO (DHA) and omega-6 fatty acid ARASCO (ARA) resulted from an incorrect interpretation of nutritional guidelines and NOP board recommendations. Thus, DHA and ARA, present in 90 percent of organic infant formulas, will no longer be permitted in foods certified as organic, and NOP plans to issue draft guidance, subject to a 60-day public comment period, to “provide a transition time for businesses to reformulate products to comply with the regulations.” Organics watchdog Cornucopia Institute recently re-filed a complaint with the NOP contending that the use of DHA and ARA in organic infant formulas and organic dairy foods constitutes a possible violation of NOP regulatory standards. The institute claimed that a former NOP director overruled the determination of…
According to a news source, a think tank with links to industry interests has suggested that a recent federal appeals court ruling could give parties challenging agency rulemaking data under the Data Quality Act (DQA) the ability to obtain judicial review of the agencies’ responses to their DQA petitions. The DQA required the Office of Management and Budget (OMB) to provide guidance to federal agencies “for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of . . . the Paperwork Reduction Act.” Each federal agency was required to “establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency,” if that information did not comply with OMB’s guidelines. When adopted, the DQA was viewed as a way for industry interests to slow down rulemaking by giving them a process for…
