Unilever United States, Inc. has asked a federal district court to dismiss a putative class action charging the company with falsely advertising its “I Can’t Believe It’s Not Butter”® product. Rosen v. Unilever U.S., Inc., No. 09-02563 (N.D. Cal, motion filed November 30, 2009). According to Unilever’s motion, this is a “Private Surgeon General” case that seeks refunds for products purchased over the last four years because Unilever allegedly (i) falsely claims that its products are “Made With A Blend of Nutritious Oils,” and (ii) fails to disclose that the products contain trace amounts of trans fatty acids. Unilever argues that the claims are preempted by federal law which requires a “zero” trans fat content label if the product contains less than 0.5 gram per serving. The company also seeks dismissal under the dormant Commerce Clause, contending that, “If successful, Rosen will Balkanize [trans fat] labeling rules—one set of rules for California…
The Ninth Circuit Court of Appeals has determined that animal rights activists and organizations lack standing to challenge the U.S. Department of Agriculture’s (USDA’s) interpretation of a 1958 humane animal slaughtering statute in a manner that excludes poultry from its application. Levine v. Vilsack, No. 08-16441 (9th Cir., decided November 20, 2009). The issue arose in a case alleging that “inhumane methods” of poultry slaughter increased the risk of food-borne illness to plaintiff consumers as well as health and safety dangers to plaintiff poultry workers. The court reversed a district court order granting USDA’s motion for summary judgment and remanded the case with instructions to dismiss. According to the court, the plaintiffs had the burden of establishing that their alleged injury “was likely to be redressed by a favorable court decision.” The key to the court’s redressability determination was that the 1958 law’s only enforcement mechanism was later repealed. If…
The Food and Drug Administration (FDA) has published a notice seeking public comment on a proposed experimental study that would examine consumer reaction to possible modifications in the nutrition facts labeling format. The study results will reportedly help the agency understand whether label modifications “could help consumers to make informed food choices.” FDA intends to randomly select 3,600 people to review nutrition facts labels from a selection of different formats, foods and nutrition information, and then judge their reactions as to the foods’ “nutritional attributes and overall healthfulness” and whether the labels help “calculate calories and estimate serving sizes to meet objectives.” FDA invites comments on (i) whether the information collected “will have practical utility”; (ii) the “validity of the methodology and assumptions used”; (iii) “ways to enhance the quality, utility and clarity of the information to be collected”; and (iv) “ways to minimize the burden of the collection of information.”…
The Food and Drug Administration (FDA) has issued a proposed rule that would amend the agency’s animal-food regulations by requiring manufacturers to list the common or usual names of FDA-certified color additives on animal food labels, including animal feeds and pet foods. The amendment would make the regulations consistent with those that apply to human food and suggests how color additives not certified by FDA should be declared on the ingredient list of animal foods. According to FDA, the proposal responds to the Nutrition Labeling and Education Act of 1990, which modified the Federal Food, Drug, and Cosmetic Act by requiring food labels to list the common or usual names of all FDA-certified color additives. The 1990 amendments apply both to human and animal foods, but apparently regulations pertaining to animal foods have yet to be issued. Written comments will be accepted until February 22, 2010. See Federal Register, November…
U.S. Senator Dianne Feinstein (D-Calif.) has introduced legislation (S.B. 2819) “to require that food producers take responsibility for keeping food free from harmful pathogens,” according to a November 30, 2009, press release. The Processed Food Safety Act would amend the Poultry Products Inspection Act, Federal Meat Inspection Act and Federal Food, Drug and Cosmetic Act to “prohibit the sale of any processed poultry, meat and FDA-regulated food that has not either undergone a pathogen reduction treatment, or been certified to contain no verifiable traces of pathogens.” The Act also includes provisions to (i) require that “labels on ground beef, or any other ground meat product, specifically name every cut of meat that is contained in the product,” and (ii) close loopholes “in current laws that allow for producers to add coloring, synthetic flavorings and spices to their products without informing the consumer.” In announcing the bill, Feinstein highlighted a recent…
Concluding that alcohol ads are viewed more than 18,000 times by public school student transit passengers during an average weekday, a new study recommends that Boston’s public transit system be prohibited from displaying alcohol advertisements. Justin Nyborn, et. al, “Alcohol Advertising on Boston’s Massachusetts Bay Transportation Authority (MBTA) Transit System: An Assessment of Youths’ and Adults’ Exposure,” American Journal of Public Health (November 2009). Some 9,600 students aged 11-18 use the transit system daily. Michael Siegel, a professor at Boston University School of Public Health who co-authored the study, said, “By allowing alcohol advertising on the T, the state is not only allowing alcohol companies to bombard our kids with enticing advertisements, it is also allowing these companies to successfully recruit new drinkers among underage youths in the Commonwealth.” Siegel’s primary research interest is in tobacco control. See BU School of Public Health: The Insider, November 4, 2009. In a…
“Flavor chemicals often make up less than one percent of the ingredients in processed foods, and many flavorists regard the terms ‘natural’ and ‘artificial’ as largely meaningless—an indulgence for consumers who happen to believe that one is more likely to be toxic than another, even if the perception is not necessarily true,” writes The New Yorker’s Raffi Khatchadourian in this article examining the history of the food flavoring industry. Shadowing a flavorist who works for the Swiss company Givaudan, Khatchadourian reports that this $20 billion per year sector has evolved from “simple and direct” applications of natural additives or essential oils to a precise molecular science. “Once you begin to consider the natural world at a molecular level, the boundaries that separate one fruit from another begin to seem like artifice,” he notes, adding that both the technology and the secretive business culture present unique regulatory challenges. “The flavor industry…
This New York Times special report chronicles a growing movement among organic dairy farmers to overturn state bans on the sale of unpasteurized milk. According to the report, 28 states currently allow sales of raw milk “in some form,” but the Food and Drug Administration (FDA) has deemed the product “inherently dangerous” and banned its interstate sale. Yet one advocacy group has reportedly claimed that farmers could receive $5 to $7 per gallon for raw milk sold directly to consumers. “Now, the weak market for pasteurized milk and its effect on dairy farmers is motivating some states to reconsider their ban,” maintains the article, which cites raw milk proponents who “say that pasteurization kills enzymes and bacteria that are nutritionally beneficial and aid in digestion and diminishes vitamin content.” FDA officials, however, have apparently refuted these touted health benefits. The Times observes that the agency is currently reviewing its 60-day…
According to ConsumerLab.com, many of the probiotic supplements it tested contained far less of the amount of viable organisms advertised, due, primarily, to the death of the purportedly beneficial organisms after manufacture. Some companies apparently qualify their claims of cell amounts by stating “at the time of manufacture” on product labels. ConsumerLab’s president was quoted as saying, “It’s shocking how many products really don’t have what they claim on their labels. The buyer has to be careful.” Those promoting probiotics reportedly claim that 1 billion organisms will provide some benefit for digestion and some infections, so those products starting with tens of billions of live cells likely have the minimum amount deemed necessary by the time of consumption. At least one company responded to the study by claiming that its marketing, which includes the qualifier, is not deceptive. According to the company that makes Nature’s Secret Ultimate Probiotics®, which was…
The Organic Center, Union for Concerned Scientists and Center for Food Safety have issued a report claiming that U.S. Department of Agriculture data show that the use of weed-killing herbicides on genetically engineered (GE) corn, soybeans and cotton has increased by 383 pounds over a 13-year period ending in 2008. According to the preface to the report, titled “Impacts of Genetically Engineered Crops on Pesticide Use: The First Thirteen Years,” this finding will be “news to the public at large, which still harbors the illusion, fed by misleading industry claims and advertising, that biotechnology crops are reducing pesticide use. Such a claim was valid for the first few years of commercial use of GE corn, soybeans, and cotton. But, as this report shows, it is no longer.” The report contends that widespread adoption of glyphosate-resistant crops “has vastly increased the use of glyphosate herbicide,” which “has spawned a growing epidemic…
