A federal court in California has issued orders allowing certain claims to proceed in Lanham Act litigation brought by sugar producers against trade associations and companies that make high-fructose corn syrup (HFCS). W. Sugar Coop. v. Archer-Daniels-Midland Co., No. 11-3473 (C.D. Cal., orders entered October 21, 2011). The plaintiffs allege that an advertising campaign the defendants launched in 2008 to tell the public that “HFCS is corn sugar,” “HFCS is natural,” and “sugar is sugar” contains false representations about HFCS “that constitute false advertising under the Lanham Act and a violation of the California[] Unfair Business Practices Act.” The defendants filed a motion to dismiss contending that the plaintiffs had failed to state a claim on which relief can be granted. While the court agreed that the plaintiffs had failed to state a claim against individual trade association members, it found the pleadings sufficient to state a claim for false advertising…
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The consumer group Citizens for Health has launched a website, FoodIdentityTheft.com, change of High Fructose Corn Syrup” and urges readers to contact federal agencies to oppose relabeling the ingredient “corn sugar.” The site also targets tomato sauces advertised as using “only the finest tomatoes” and blueberry-flavored products that allegedly contain “absolutely no blueberries.” “Many consumers believe that the U.S. government will protect us from false advertising or stop corporations from making unproven claims about their products,” said the site’s senior editor Linda Bonvie in a September 27, 2011, Citizens for Health press release. “But the truth is, corporations and their lobbyists have a huge influence in Washington. We as consumers have to protect ourselves, stay informed, and tell our legislators and government agencies that we won’t accept being lied to.” Dedicated to the “natural health consumer,” Citizens for Health has also organized a march from New York City to the…
According to documents obtained by Associated Press reporter Thomas Watkins, the Food and Drug Administration (FDA), which is currently considering a Corn Refiners Association petition to allow high-fructose corn syrup (HFCS) to be called “corn sugar,” has written to the association indicating concern with the trade group using the terms interchangeably. In the July 12, 2011, letter, an FDA director reportedly stated, “We request that you re-examine your websites and modify statements that use the term ‘corn sugar’ as a synonym for (high fructose corn syrup).” On behalf of the association, Audrae Erickson reportedly stated, “We do not believe that anyone could be confused or believe that the statements regarding ‘corn sugar’ on the websites refer to anything other than high fructose corn syrup.” Watkins notes that FDA has no regulatory authority over the association’s advertising because it promotes an industry and not a product. The FDA letter apparently indicated…
A federal court in California has granted in part the motion to dismiss filed by Arizona Beverages USA LLC, in a putative class action alleging the violation of consumer fraud and false advertising laws due to company representations that its products are “Natural,” “All Natural” and “100% Natural.” Ries v. Arizona Beverages USA LLC, No. 10-01139 (N.D. Cal., decided August 25, 2011). The plaintiffs contend that the products are not natural in that they contain high-fructose corn syrup and an artificially produced citric acid. At issue in the defendants’ motion was whether the plaintiffs had adequately pleaded the claims in their first amended complaint under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). According to the court, the complaint adequately pleaded fraud in connection with the plaintiffs’ allegations arising out of the product labels. The court concluded, “These allegations are not inherently implausible and are sufficient for purposes of Rule 9(b).” The…
The National Consumers League (NCL) recently filed formal comments with the Food and Drug Administration (FDA), opposing a petition to register “corn sugar” as an alternative name for high-fructose corn syrup (HFCS). Claiming that the change “would be inconsistent with longstanding FDA common or usual name regulations,” NCL argues that “permitting HFCS to be called ‘corn sugar’ would allow manufacturers to conceal this ingredient from consumers.” “HFCS has been the name of the ingredient since FDA’s original GRAS affirmation regulation in 1983,” writes NCL Executive Director Sally Greenberg in a letter warning that the science is still evolving. “If it should turn out that HFCS does contribute to higher caloric intake, and therefore obesity, or other adverse health outcomes, a regulatory decision that would allow manufacturers to hide this ingredient from consumers could come back to haunt FDA.” See FoodNavigator-USA.com, March 8, 2011; NCL Press Release, February 10, 2011.
A federal district court in New York has granted the motion for summary judgment filed by Snapple Beverage Corp. in a case alleging that the company misled consumers by labeling its teas and juice drinks as “All Natural” because the company’s beverages contain high-fructose corn syrup (HFCS). Weiner v. Snapple Beverage Corp., No. 07-8742 (S.D.N.Y., decided January 21, 2011). The court had previously denied plaintiffs’ motion for class certification but determined, despite that denial, that it could decide the merits of the summary judgment motion even though the lawsuit now failed to satisfy the requirements of original diversity jurisdiction. The defendant argued that the plaintiffs did not offer any evidence showing injury from Snapple’s “All Natural” labeling, and the court agreed. Analyzing each claim—violation of a state deceptive practices law, unjust enrichment, and breach of express and implied warranty—the court found that the plaintiffs failed to present reliable evidence that they…
The University of Southern California Childhood Obesity Research Center (CORC) has published a study claiming that high-fructose corn syrup (HFCS) contains 18 percent more fructose than estimated by soft drink manufacturers. Emily Ventura, Jaimie Davis and Michael I. Goran, “Sugar Content of Popular Sweetened Beverages Based on Objective Laboratory Analysis: Focus on Fructose Content,” Obesity, October 2010. According to the study, food and nutrition researchers usually assume that the ratio of fructose to glucose in HFCS is 55 to 45, based on information provided by the Corn Refiners Association. But after analyzing 23 sugar-sweetened beverages and four standard solutions with high-performance liquid chromatography, CORC allegedly determined that not only was the mean fructose content 59 percent, but that “several major brands appear to be produced with HFCS that is 65 [percent] fructose.” The study also raises questions about the other kind of sugars used in these beverages, reporting “significant deviations…
A federal court in New Jersey has granted the defendant’s unopposed motion to extinguish the stay in a lawsuit contending that Snapple beverage products are falsely advertised as “natural” because they contain high-fructose corn syrup, a purportedly non-natural ingredient. Holk v. Snapple Beverage Corp., No. 07-3018 (D.N.J., decided October 15, 2010) (unpublished). The court had stayed the litigation pending the Food and Drug Administration (FDA) reaching a decision about the definition of “natural.” According to the court’s order, “The FDA in response has declined to address that issue.” Noting that another district court in New Jersey has lifted a stay imposed for the same reason in similar litigation (Coyle v. Hornell Brewing Co.), the court agreed to reopen the case, but refused to reinstate the motions that were pending when the case was “administratively terminated.” The court ordered the parties “to move again, upon new notices of motion and in accordance with…
Snapple Beverage Corp. has requested that a federal district court dismiss the individual claims remaining in litigation alleging that the company misled consumers by labeling beverages containing high-fructose corn syrup (HFCS) as “all natural.” Weiner v. Snapple Beverage Corp., No. 07-8742 (S.D.N.Y., motion filed September 17, 2010). In August 2010, the court issued an order denying plaintiffs’ request to certify a statewide class of claimants. Additional information about that order appears in Issue 363 of this Update. According to the defendant’s memorandum of law supporting its motion, while the plaintiffs “seek recovery of an alleged ‘price premium’” that they paid for the products, they (i) do not know how much they actually paid for Snapple, (ii) made no effort to determine how comparable products were priced when they purchased Snapple beverages, (iii) lack any receipt to document a Snapple purchase, (iv) “cannot recall with any certainty the price they paid…
The Corn Refiners Association has petitioned the Food and Drug Administration (FDA) “to allow manufacturers the option of using ‘corn sugar’ as an alternative name for high fructose corn syrup.” The trade group contends that the public is confused about what the sweetener is and that “‘corn sugar’ succinctly and accurately describes what this natural ingredient is and where it comes from—corn.” According to an association press release, “Contrary to widespread consumer belief, high fructose corn syrup—a safe and affordable natural sweetener found in many popular products on grocery shelves—is not high in fructose when compared with other commonly used nutritive sweeteners, including table sugar, honey and fruit juice concentrates.” Food industry critics immediately responded to news about the petition by claiming those who produce high-fructose corn syrup (HFCS) are less concerned about “epidemic rates of obesity, diabetes and corn allergies” than they are about “a 20 year low in…
