Months after a Florida federal court rejected a motion to dismiss a putative class action alleging that Bodacious Foods falsely labeled its cookies as “all natural,” The Cincinnati Insurance Co. has filed a lawsuit seeking a declaration that the policy the food manufacturer holds with it does not cover costs stemming from the alleged false labeling. The Cincinnati Ins. Co. v. Bodacious Food Co., No. 14-81515 (S.D. Fla., filed December 4, 2014). The insurance company asserts that Bodacious’s policy excludes coverage for the allegations of the putative class action, including (i) “’bodily injury’ or ‘property damage’ which may reasonably be expected to result from the intentional acts of the insured”; (ii) “’personal or advertising injury’ caused by or at the direction of the insured with the knowledge that the act would violate the rights of another”; and (iii) “’personal and advertising injury’ arising out of oral or written publication of material,…
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In a 10-4 vote, the Navajo Nation Council has approved a tax on “junk” foods sold on the largest reservation in the United States. If President Ben Shelly signs the measure into law, the Healthy Dine Nation Act of 2014 would apply to items like cookies, chips and soft drinks, and the revenue generated would be directed to a fund supporting farmers markets, the planting of vegetable gardens, purchase of exercise equipment, and other health-focused projects. Shelly evidently vetoed similar legislation earlier in 2014, reportedly saying that he supported the goals of the tax initiative but questioned its implementation. Proponents of the tax reportedly cite the high rates of diabetes among American Indians and Alaska Natives—the highest among U.S. racial and ethnic groups—as the main reason to pass the legislation. See Associated Press, November 15, 2014. Issue 546
A Florida federal court has rejected a motion to dismiss in a case accusing Bodacious Foods of labeling its cookies as “all natural” despite containing sugar, canola oil, dextrose, corn starch, and citric acid, which the plaintiff alleges should preclude Bodacious from using the “natural” label. Dye v. Bodacious Food Co., No. 14-80627 (S.D. Fla., order entered September 9, 2014). Bodacious argued that the U.S. Food and Drug Administration (FDA) should have primary jurisdiction over the case, but the court disagreed, finding that FDA has declined to regulate the use of “natural” in food labeling. The cookie company also argued that its inclusion of all ingredients on the label was clear and not misleading, but the court found it “plausible that a consumer might rely on the ‘all natural’ representation without scrutinizing the ingredients or, alternatively, that a consumer might incorrectly believe that sugar, canola oil, dextrose, corn starch, and citric…
Calling it “ridiculous to say that consumers would expect snack food ‘made with real fruit’ to contain only ‘actual strawberries or raspberries,’ rather than these fruits in a form amenable to being squeezed inside a Newton,” a federal court in California has dismissed without leave to amend consumer fraud claims against the company that makes Nabisco strawberry and raspberry Newton cookies. Manchouck v. Mondeléz Int’l Inc., No. 13-2148 (N.D. Cal., decided September 26, 2013). The court determined that the plaintiff had Article III standing without alleging physical injury because this is not the sole measurement of injury-in-fact and the plaintiff alleged that she had paid a premium price for the products which she would not have purchased “at that price point absent the alleged misstatements.” The court agreed with the defendant, however, that the plaintiff had failed to meet the plausibility pleading standard set forth in Ashcroft v. Iqbal, 556 U.S.…
Girl Scouts of America is facing sharp criticism from the Center for Science in the Public Interest (CSPI) for marketing new mango-flavored crème cookies as a “delicious” and “nutritious” snack, with “all of the nutrient benefits of eating cranberries, pomegranates, oranges, grapes, and strawberries.” In a letter to Girl Scouts of America CEO Anna Maria Chávez, CSPI asserts that by marketing these new cookies as a “delicious new way to get your vitamins,” the youth organization is “misleading its members and undermining their health.” CSPI further alleges that the cookies not only lack the “nutrient benefits” claimed on the Girl Scouts’ website, but contain “4 grams of heart disease promoting saturated fat and 11 grams of tooth-decaying sugars per three-cookie serving.” The health advocacy watchdog encourages the organization to stop marketing the cookies as “healthful” and seek other ways of fundraising.
Kraft Foods Global Brands LLC has filed a complaint in an Illinois federal court against Kellogg and Keebler, claiming that the companies’ cookie packaging infringes resealable food container patents that Kraft owns. Kraft Foods Global Brands LLC v. Kellogg N. Am. Co., No. 13 321 (N.D. Ill., filed January 16, 2013). According to the complaint, the infringing products involve the defendants’ Keebler Sandies® line of products, including shortbread, pecan shortbread and dark chocolate almond cookies. Kraft alleges that it informed the defendants of the infringement during an August 2012 meeting, but despite that knowledge, “Defendants continue to commit acts of infringement.” Kraft seeks injunctive relief, destruction of infringing products, an accounting, damages, a determination that the case is “exceptional,” attorney’s fees, costs, and interest.
According to a news source, a Brazilian court has determined that Nestlé’s strawberry-flavored Bono Cookies® contain genetically modified (GM) soybeans at levels in excess of a 1 percent limit and that the company must thus place a yellow triangle with a “T” in the middle along with the word “transgenic” on its product labels. Failure to do so will apparently result in a fine of nearly $2,500 USD per product found in the market to contravene the order. The European Union and Japan also reportedly require GM foods to be labeled, and California voters will vote on a GM labeling referendum this fall. See Food World News, August 27, 2012.
The Center for Science in the Public Interest (CSPI) and Berkeley Media Studies Group have asked Nestlé CEO Brad Alford to stop marketing limited-edition Crunch® candy bars with three Girl Scout cookie flavors. Their June 18, 2012, letter contends that the co-branding initiative “violates your pledge not to target children with marketing for candy.” The products apparently feature the Girl Scout logo, and the groups assert that this tie-in and logo “will attract the attention of and appeal to children” because Girl Scouts are children, with some “2.3 million girls, in Kindergarten through 12th grade,” participating in scout activities nationwide. “Even if the candy bar advertising is targeted towards adults, the Girl Scout’s theme is inherently appealing to children and so constitutes marketing to children,” according to the letter. The groups close with, “Marketing thematically geared towards children is marketing to children. We look forward to discussing this further with…
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