A consumer has filed a putative class action alleging that Kind LLC misleadingly markets its products as made from whole fresh fruits. Song v. Kind LLC, No. 18-4982 (E.D.N.Y., filed September 4, 2018). The complaint asserts that the product names and descriptions "use collective names to refer to their components” because they are allegedly made from processed fruit, “by-products or processed derivative ingredients.” The plaintiff also argues that the visual representations on the packaging “emphasize their equivalence to whole fruits.” The complaint further asserts that tropical fruits used in the products are dried using osmotic dehydration, which purportedly treats the fruits with added sugars. In addition, the plaintiff alleges that Kind uses ascorbic acid as a preservative but does not list it among the ingredients. Claiming violations of New York’s General Business Law, negligent misrepresentation and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
AriZona Beverages LLC faces a putative class action alleging it misleads consumers by representing the sugar and calorie content of its beverages based on a serving size of eight ounces while its product is sold in 16-ounce cans. Neville v. AriZona Beverages USA LLC, No. 18-5040 (E.D.N.Y., filed September 6, 2018). The complaint asserts that AriZona “engaged in unfair competition to the detriment of consumers by refusing to follow the industry standard which is based upon the size of a can or bottle that a consumer would usually drink in one sitting.” Alleging violations of several state consumer-protection statutes and breach of express warranty, the plaintiff seeks class certification, damages, injunctive or declaratory relief, restitution and attorney’s fees.
England's Department of Health and Social Care has opened a consultation on whether the country should ban the sale of energy drinks to children. The consultation requests comments on (i) "what products should be included in any restrictions," (ii) "what age limit a ban should apply to," (iii) "whether sales of energy drinks from vending machines should be restricted" and (iv) "whether there are any changes that would be more appropriate than a ban on sales to children or that could be applied as well as a ban." The consultation cites the effects of sugar and caffeine on children as concerns triggering the proposed ban. Scotland, Wales and Northern Ireland would not be affected by any actions England takes pursuant to the consultation.
The California legislature has passed a bill that would require retail food facilities to make the default beverages sold with children's meals "water, sparkling water or flavored water, as specified, or unflavored milk or a nondairy milk alternative, as specified." Flavored waters may not contain "added natural or artificial sweeteners," while nondairy milk alternatives must contain fewer than 130 calories. In addition, a restaurant's menu and advertisements must display the default beverages. The bill would "not prohibit a restaurant’s ability to sell, or a customer’s ability to purchase, an alternative beverage instead of the default beverage offered with the children’s meal, if requested by the purchaser of the children’s meal." The bill has been presented to Governor Jerry Brown for approval.
In a forthcoming Brooklyn Law Review article, professors from George Washington University Law School and Lund University argue that one solution to the definition dispute between cow's milk and plant-based milk producers may be to label plant-based milks as "mylk." Gambert et al., "Got Mylk? The Disruptive Possibilities of Plant Milk," Brooklyn L. Rev., forthcoming 2019. The professors assert that plant-based milk producers should embrace a new word, such as the "whimsical" and "creative" "mylk," to avoid negative associations with "milk with an 'i,'" including "exploitation and oppression – of women, people of color, and nonhuman animals." "At the end of the day, the 'milk wars' on both sides of the Atlantic serve as a barometer of plant milk’s role as a disruptive force in the millennia-long relationship between humans and milk. By replacing the 'i' with a 'y,' plant milk – or mylk – advocates can signal to the…
The U.S. Department of Agriculture (USDA) has announced the intention to establish a 2020 Dietary Guidelines Advisory Committee and has solicited nominations for membership. The committee will consist of 13 to 20 members and will begin meeting in late 2018 or early 2019. The U.S. Codex Office will hold a public meeting on September 26, 2018, to receive public comments on U.S. positions for the Codex Committee on Food Import and Export Inspection and Certification Systems.
Sens. Debbie Stabenow (D-Mich.), Mike Rounds (R-S.D.) and Gary Peters (D-Mich.) have introduced legislation that would providing funding for the U.S. Geological Survey (USGS) to conduct environmental sampling for per- and polyfluoroalkyl substances (PFAS), which can be used in food packaging. According to the senators' press release, "There are more than 3,000 chemicals containing PFAS but less than 30 of these substances can be detected using current technology. The data collected by the USGS could be used to better assess the likely health and environmental impacts of exposure to PFAS chemicals and determine how to address contamination moving forward."
The Good Food Institute (GFI) and Tofurky Co. have filed a civil-rights action alleging that Missouri "criminalizes truthful speech by prohibiting 'misrepresenting' a product as 'meat' if that product is 'not derived from harvested production livestock or poultry.'" Turtle Island Foods v. Richardson, No. 18-4173 (W.D. Mo., filed August 27, 2018). The lawsuit responds to Missouri's agriculture bill, which was amended to include the contested language in June 2018 and took effect August 28. The complaint alleges that the statute seeks "to prevent plant-based and clean meat producers, including Tofurky, from accurately informing consumers what their products are: foods designed to fulfill the roles conventional meat has traditionally played in a meal." The plaintiffs argue that consumers are unlikely to be confused because "historically, the term 'meat' has had multiple meanings, including to describe the edible part of any food, such as a fruit or nut"; further, "clean meat" products…
A California federal court has dismissed with prejudice a putative class action alleging that Diet Dr Pepper is falsely advertised as a weight-loss product. Becerra v. Dr Pepper/Seven Up, Inc., No. 17-5921 (N.D. Cal., entered August 21, 2018). The plaintiff alleged that the term “diet” leads consumers to believe the beverage is a weight-loss or weight-management product despite that aspartame could allegedly cause weight gain. The court, which previously dismissed the complaint three times, found implausible "that reasonable consumers would believe consuming Diet Dr Pepper leads to weight loss or healthy weight management absent a change in lifestyle.” The court held that the plaintiff again failed to plead facts that could pass a “reasonable consumer” test and that the plaintiff failed to sufficiently plead a causal link between aspartame and weight gain.
The U.K. Advertising Standards Authority (ASA) has declined to uphold a complaint arguing that Walkers Snacks targeted children under 16 with a product high in fat, salt or sugar by showing an advertisement for Doritos before YouTube videos. The complaint asserted that the “media or context” of the ad targeted children under 16, but ASA found that Walkers had taken “a range of steps to ensure that the ad was not targeted to children under the age of 16, using both age restrictions and interest based factors.” Walkers applied YouTube age-targeting restrictions by not approving the ad for families and instructing YouTube to show the ad to users logged into accounts with a self-reported age of 18 or older. “We understood from the complainant that the ad had been seen by an 8-year-old child who was not signed into YouTube, using a device used by both adults and children,” ASA…
