A recent perspective piece published in the New England Journal of Medicine has argued that “steps should be taken” to curb “spur-of-the moment, emotion-related purchases… triggered by seeing the product or a related message.” Deborah Cohen & Susan Babey, et al., “Candy at the Cash Register — A Risk Factor for Obesity and Chronic Disease,” NEJM, October 2012. The article takes issue with impulse marketing focused on “the placement and display of products in retail outlets,” such as candy offered for sale at cash registers. “Placement of foods in prominent locations increases the rate at which they’re purchased; purchase leads to consumption; and consumption of foods high in sugar, fat and salt increases the risks of chronic disease,” state the authors. “Because of this chain of causation, we would argue that the prominent placement of foods associated with chronic diseases should be treated as a risk factor for those diseases.” In…
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The City of Lakewood, Colorado, has reportedly adopted an ordinance that will subject soft drinks and candy to a 3 percent city sales tax. The tax code change was apparently considered and approved during the city council’s August 27, 2012, meeting. The ordinance is intended to align the city’s taxation of food with the state by exempting sales of food for immediate consumption from sales tax, while taxing soda and candy. According to a news source, the change takes effect in 30 days. See ABC7News, TheDenverChannel.com, August 28, 2012.
Claiming that lead levels in candies imported from China, Taiwan and Hong Kong exceed Proposition 65 (Prop. 65) limits, the Center for Environmental Health has reportedly initiated legal proceedings against eight retailers and distributors in San Francisco’s Bay Area. The organization has apparently urged the companies to remove the products from store shelves after testing showed that typical serving sizes would expose consumers to 10 times or more lead than state and federal standards. One candy allegedly contained nearly 100 times more lead than the Prop. 65 limit. According to Center Executive Director Michael Green, “It is especially worrisome when we find lead in candy, since consumers are ingesting the lead with every bite. This candy may be very dangerous, particularly for children or pregnant women.” See Center for Environmental Health News Release, August 7, 2012.
The European Union (EU) Court of Justice has affirmed a General Court ruling that confectioner Lindt & Sprüngli, AG cannot register certain three-dimensional shapes, their colored wrappings or ribbons as European Community trademarks. Chocoladefabriken Lindt & Sprüngli AG v. Office for Harmonisation in the Internal Mkt. (Trademarks and Designs), Case No. C-98/11 P (E.C.J., decided May 24, 2012). Additional details about the case appear in Issue 376 of this Update. The mark was sought for the shape of a sitting rabbit with a red ribbon. According to the court, the shape was “typical” for chocolate rabbits and was thus “devoid of any distinctive character.” The court also found that the gold-foil wrapping and small bells and bows embellishments were “common elements in the case of chocolate animals.” The court further ordered the chocolatier to pay the costs of the appeal.
The U.K.’s Advertising Standards Authority (ASA) has determined that a series of tweets from Rio Ferdinand and Katie Price that culminated in messages specifically referencing and showing a photo of these personalities with Snickers® bars did not violate the U.K. Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (Code). The initial tweets did not contain any indication that they were sponsored by Mars Chocolate UK Ltd. The final tweets, with the Snickers® content, included “#spon” to indicate they were sponsored and the “strap line ‘you’re not you when you’re hungry.’” According to Mars, the strap line was intended to tie into the earlier tweets, “because their content would not usually be associated with the celebrity tweeters.” The company also indicated that it believed only the final tweets were marketing communications and that the earlier tweets did not require identification as marketing communications. In the alternative, the company explained that “the…
Massachusetts Governor Deval Patrick (D) has proposed eliminating the state’s sales tax exemption on soft drinks and candy to combat obesity and control rising health care costs. Included in his fiscal year 2013 budget recommendation, Deval’s plan would reportedly raise $61.5 million targeted in large part to preserving public health programs and preventative care services. “In the past 10 years, the percentage of Massachusetts adults with diabetes has almost doubled, and obesity will soon pass smoking as the leading cause of preventable death,” according to a recent budget issue brief released by the governor. “Consumption of candy and soda is on the rise. Per capita candy consumption has increased steadily since the mid-1980s. Candy and soda add significant non-nutritional calories to the diets of Americans and are directly linked to obesity, especially among children.” See News Release of Governor Deval Patrick, January 25, 2012.
Hershey Company has reportedly sued Mars for trademark infringement in a Pennsylvania federal court, alleging that colors used in the packaging for Mars’s Dove peanut-butter milk-chocolate Promises® candy is too similar to what Hershey uses for its Reese’s Peanut Butter Cups®. Mars apparently filed a preemptive suit just days earlier in a Virginia federal court, asking to dismiss the Hershey complaint. Mars reportedly contends that Hershey admits it does not have exclusive rights to package peanut-butter candies in orange wrappers and that orange is commonly used in the industry as an indicator of peanut-butter flavor. According to a news source, Hershey sent a cease-and desist letter to Mars in November 2010, stating, “It can come as no surprise to Mars that Hershey, having objected to the color of the individual Dove peanut butter chocolate wrappers and filed a counterclaim to obtain a change of that color, would have a serious problem…
In a recent FindLaw article, Cornell Law School Professor Sherry Colb addresses whether New York City Mayor Michael Bloomberg’s proposal to prevent food stamp recipients from buying sugar-sweetened sodas and beverages violates any constitutional proscriptions. Titled “No Buying Soda with Food Stamps? Considering Mayor Bloomberg’s New Health Initiative,” Colb’s article concludes that arguments about equal treatment for the poor and consumer freedom in general hold no weight given the overwhelming risks to public health posed by “unhealthy, empty-calorie food.” She expresses confidence that food stamp recipients will experience measurable benefits by avoiding some unhealthy foods, which will convince public officials to expand such initiatives “to take on various industries that profit at the expense of human health.” Meanwhile, a New York Times article discusses what prompted a writer and former Rutgers professor to begin the “Candy Professor” blog, which apparently “dives deep into the American relationship with candy, finding irrational and…
Alleging that no scientific evidence supports Wm. Wrigley Jr. Co.’s claim that the cardamom in its Eclipse® Breeze chewing gum “neutralize[s] the toughest breath odors,” a California resident has filed consumer fraud claims against the company in a federal court on behalf of a nationwide class of consumers. Sityar v. Wm. Wrigley Jr. Co., No. 10-5965 (C.D. Cal., filed August 10, 2010). The complaint alleges that he was misled by the company’s claims and “has spent money purchasing the Product at a price premium when the Product actually had less value than was reflected in that price he paid for the Product.” Seeking restitution, disgorgement, declaratory and injunctive relief, a corrective advertising campaign, costs, and attorney’s fees, the plaintiff alleges violations of California unfair competition and false advertising laws, breach of express warranty and violation of California’s Consumer Legal Remedies Act. The plaintiff alleges that the only evidence of “medicinal properties”…
Supervalu, Inc. has filed an antitrust action against a number of chocolate manufacturers, alleging that they conspired to fix chocolate candy prices and overcharged the plaintiff for these products from 2002 through 2008. Supervalu, Inc. v. The Hershey Co., No. 10-1354 (E.D. Pa., filed March 29, 2010). The complaint outlines the chocolate companies’ sales during the relevant time period and details the increases in prices charged for specific products despite a decrease or lack of change in the price for cocoa beans during the same period. The plaintiff also claims that the prices of sugar, milk and labor remained relatively stable throughout the period. Included in the complaint are allegations contained in affidavits filed in connection with an investigation into the companies’ conduct by the Canadian Competition Bureau. Seeking treble damages, declaratory and injunctive relief and attorney’s fees and costs, the plaintiff alleges a single count of conspiracy to fix prices under…
