Two proposed class actions have been filed in California claiming false labeling of truffle-flavored olive oil. Schiffman v. Urbani Truffles, No. 17-935 (E.D. Cal., filed May 3, 2017); Quiroz v. Sabatino Truffles, No. 17-783 (C.D. Cal., filed May 3, 2017). The plaintiffs argue that the olive oil producers add 2,4 dithiapentane to flavor their products instead of truffles and sell the “truffle infusions” at markups as high as 1,400 percent over the price of plain olive oils. The actions claim violations of the Magnuson-Moss Warranty Act and state consumer protection laws. Details on similar lawsuits in New York appear in Issue 633 of this Update. Issue 634
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Two putative class actions allege that Trader Joe’s “Black Truffle Flavored” olive oil and Monini’s “White Truffle Flavored” olive oil are flavored with synthetic chemicals rather than truffles. Brumfield v. Trader Joe’s, No. 17-3239 (S.D.N.Y, filed May 2, 2017); Jessani v. Monini N. Am., No. 17-3257 (S.D.N.Y., filed May 2, 2017). The plaintiffs argue that the products are sold for significantly more—34 percent more for Trader Joe’s and 459 percent more for Monini—than olive oil without additional flavoring. Claiming violations of the Magnuson-Moss Warranty Act and state consumer protection statutes, the plaintiffs seek class certification, an injunction, damages, restitution and attorney’s fees. Issue 633
A federal court has reportedly refused to dismiss a mislabeling class action alleging Dr Pepper’s Canada Dry Ginger Ale contains “real ginger” but dismissed the plaintiffs’ fraud claims with leave to amend. Fitzhenry-Russell v. Dr Pepper Snapple Grp., Inc., No. 170564 (N.D. Cal., motion hearing April 19, 2017). While the court found the plaintiffs’ labeling claims “plausible,” it rejected the fraud allegations for a lack of precision. The complaint asserts that the ginger ale’s label does not include “real ginger root” as an ingredient but lists chemical flavoring instead. A similar class action against Dr Pepper was transferred to California’s Northern District in April 2017; details on that action appear in Issue 628 of this Update. See Law360, April 19, 2017. Issue 632
The U.S. Food and Drug Administration (FDA) has published a September 2016 Consumer Update describing how to determine if a product contains real maple syrup as a flavoring agent. Specifically, the agency urges consumers to look at the ingredient list for the term “maple syrup” and not rely solely on depictions of maple leaves or the word “maple” displayed on the front of packaging. “Current regulations allow use of terms like ‘maple,’ ‘maple-flavored,’ or ‘artificially maple-flavored’ on the food label without having any maple syrup in the product, as long as it contains maple flavoring,” clarifies FDA. “This flavoring could come from a number of sources, including sap or bark from the maple tree. Or it could come from the herb fenugreek, which can impart a maple-like flavor.” Noting that similar rules apply to some fruit flavorings, the agency explains that terms such as “artificial flavors” or “natural and artificial…
A putative class action against Melitta USA Inc. alleges the company’s coffee product packaging fails to distinguish between “natural and/or artificial flavor” per federal regulations. Decerbo v. Melitta USA Inc., No. 16-0850 (M.D. Fla., filed April 11, 2016). The plaintiff argues that under U.S. Food and Drug Administration rules, food manufacturers must “accurately identify or describe, in as simple and direct terms as possible, the basic nature of the food and its characterizing properties or ingredients,” including whether a characterizing flavor is natural or artificial. However, “‘Hazelnut Crème’ is not flavored with hazelnuts, there is no vanilla in ‘French Vanilla,’ and ‘Pumpkin Spice’ flavor contains neither nutmeg nor cinnamon, or pumpkin or any customary pumpkin spice either, as these Products’ labels would explicitly lead a consumer to conclude,” the complaint argues. The plaintiff further notes that other coffee-product manufacturers “have responsibly decided to correctly label their products,” purportedly giving the…
A California federal court has dismissed without leave to amend several claims in a lawsuit alleging that Whole Foods Market fraudulently and misleadingly labeled its 365 Everyday Value ketchup, oatmeal and chicken broth as containing “evaporated cane juice” (ECJ) rather than “sugar.” Pratt v. Whole Food Mkt. Cal., Inc., No. 12-5652 (N.D. Cal., San Jose Div., order entered September 30, 2015). The plaintiff alleged that because Whole Foods failed to use the most common name for the ingredient—as mandated by U.S. Food and Drug Administration rules—the products were misbranded and “cannot be legally sold, possessed, have no economic value, and are legally worthless.” The court first dismissed strict liability allegations, finding that the plaintiff sought to impose a requirement inconsistent with federal law. Turning to the plausibility of the plaintiff’s allegations, the court found his reliance claims contradictory because one claim required him to know nothing about ECJ while the…
The European Court of Justice (ECJ) has found that a correct and complete list of ingredients can be part of an overall misleading food label in a case challenging a German tea company’s “Felix Raspberry and Vanilla Adventure” (“Felix Himbeer-Vanille Abenteuer”) product for having no flavorings derived from raspberries or vanilla. Bundesverband der Verbraucherzentralen und Verbraucherverbände v. Teekanne GmbH & Co. KG, No. C-195/14 (E.C.J., order entered June 4, 2015). Teekanne advertises its tea product as fruit tea with natural flavorings and a raspberry-vanilla taste, and the label features depictions of raspberries and vanilla flowers and a seal indicating the product contains only natural ingredients. The ingredient list includes “natural flavouring with a taste of vanilla” and “natural flavouring with a taste of raspberry,” according to the court. “That list thus expresses, in a manner free from doubt, the fact that the flavourings used are not obtained from vanilla and raspberries but…
A June 10, 2015, petition filed by consumer and environmental groups asks the Food and Drug Administration (FDA) to ban the following synthetic substances widely used in baked goods, ice cream and beverages: (i) benzophenone (also known as diphenylketone); (ii) ethyl acrylate; (iii) eugenyl methyl ether (also known as 4-allylveratrole or methyl eugenol); (iv) myrcene (also known as 7-methyl-3-methylene- 1,6-octadiene); (v) pulegone (also known as p-menth-4(8)-en-3-one); (vi) pyridine; (vii) styrene; and (viii) trans,trans-2,4-hexadienal. Signed by the Center for Science in the Public Interest, National Resources Defense Council, Center for Environmental Health, Environmental Working Group, Center for Food Safety, Consumers Union, and Improving Kids’. Environment, the petition claims that the flavorings are not safe for use in human food under the Delaney Clause of the Food Additives Amendment Act (21 U.S.C. § 348 (c)(3)(A)) because the National Toxicology Program and other agencies have linked them to animal or human cancers. The…
Consumer advocacy watchdog Environmental Working Group (EWG) has issued a new iteration of its “Dirty Dozen Guide to Food Additives.” Reportedly based on hundreds of studies and information culled from EWG’s Food Scores database, the resource purports to cover “food additives associated with serious health concerns, ingredients banned or restricted in other countries, and other substances that shouldn’t be in food.” The substances that EWG deems the “dirty dozen” include nitrites and nitrates; potassium bromate; propyl paraben; butylated hydrosyanisole (BHA); butylated hydroxytoluene (BHT); propyl gallate; theobromine; secret flavor ingredients; artificial colors; diacetyl; phosphate-based food additives; and aluminum-based food additives. See EWG Press Release, November 12, 2014. Issue 545
Sazerac Co. has recalled its Fireball Cinnamon Whiskey from Sweden, Norway and Finland because some batches contain levels of flavoring chemical propylene glycol that exceed European limits. The company says that it mistakenly shipped batches to Europe that were intended for the United States, where the U.S. Food and Drug Administration (FDA) allows higher levels for the Generally Recognized As Safe ingredient. The recall drew media attention to the regulation discrepancy, with many noting that industrial-grade propylene glycol is used in antifreeze. The company clarified October 29, 2014, that it uses food-grade propylene glycol, which it says is also used in many other consumable products, including salad dressing, beer, ice cream, and cake. Sazerac called the ingredient “ideal for use in a large variety of flavors to give most of today’s food and beverages their distinctive taste. Flavor companies use it to carry flavor ingredients through to the final product,…
