The U.S. Food and Drug Administration (FDA) has issued a final rule establishing requirements for "gluten-free" labeling for foods with fermented or hydrolyzed ingredients. Under the rule, FDA will evaluate compliance based on records manufacturers will be required to maintain because the agency "knows of no scientifically valid analytical method effective in detecting and quantifying with precision the gluten protein content in fermented or hydrolyzed foods in terms of equivalent amounts of intact gluten proteins." The rule takes effect October 13, 2020.
Tag Archives gluten-free
The Gluten Intolerance Group of North America (GIG), a nonprofit consumer-advocacy and food-safety certification group, has filed a lawsuit against celebrity chef Jamie Oliver alleging that his website displays a designation on gluten-free recipes that infringes the group’s trademarks. Gluten Intolerance Grp. of N. Am. V. Jamie Oliver Enters., No. 17-1028 (W.D. Wash., filed July 7, 2017). GIG alleges that Oliver’s website displays the letters “GF” inside a circle near gluten-free recipes, a mark which is identical or substantially similar to one of GIG’s registered word and design marks. Claiming trademark infringement, counterfeit of a registered mark, unfair competition and false designation of origin under the Lanham Act, the plaintiffs seek injunctive relief, recall of all materials using the contested mark, a public disclaimer of connection with GIG, corrective advertising, damages and a designation of the lawsuit as an exceptional case entitling GIG to an award of attorney’s fees. …
A consumer has filed a putative class action alleging that EN-R-G Foods’ Honey Stinger Gluten Free Organic Maple Waffles do not contain maple syrup as implied by the product’s name and packaging. Johnson v. EN-R-G Foods, No. 6258 (C.D. Cal., filed August 19, 2016). The waffle package features “a prominent image of a maple leaf and maple syrup splashed on the waffle,” leading consumers to believe that the product ingredients include maple syrup, the plaintiff asserts. For allegations of fraudulent inducement, unjust enrichment and violations of California law, he seeks class certification, damages, an injunction and attorney’s fees. Issue 615
Four consumers have filed a putative class action against Barilla S.p.A. alleging the company sells its specialty pasta and standard pasta products in nearly identical boxes but underfills the specialty boxes, amounting to unpermitted slack fill. Berni v. Barilla S.p.A., No. 4196 (E.D.N.Y., filed July 28, 2016). In addition to its traditional pasta products, Barilla sells gluten-free, “Protein Plus” and whole-grain varieties of pasta. The specialty and traditional pastas appear to be sold in similar amounts, the complaint asserts, but the specialty boxes actually contain less pasta—while one box of penne contains 454 grams, for example, the “Protein Plus” variety contains 411 grams and the gluten-free version contains 340 grams, despite being sold in similarly sized boxes. This discrepancy results in the specialty boxes including about 10 to 25 percent non-functional slack fill, the plaintiffs allege. For an alleged violation of the New York Business Code and an unjust enrichment…
A California federal court has granted voluntary dismissal to the plaintiff in a putative class action alleging P.F. Chang’s China Bistro Inc. discriminates against customers with a gluten allergy by adding a surcharge to gluten-free dishes. Phillips v. P.F. Chang’s China Bistro Inc., No. 15-0344 (N.D. Cal., San Jose Div., order entered June 6, 2016). The order granted dismissal to the plaintiff with prejudice but without prejudice as to the putative class, leaving the possibility that another plaintiff may step into the lead plaintiff role. The court also imposed the defendant’s costs on the plaintiff. Details on the complaint appear in Issue 555 of this Update. Issue 607
The U.S. Food and Drug Administration (FDA) has extended from February 16 to February 22, 2016, the comment period regarding requirements for fermented and hydrolyzed foods or those containing fermented or hydrolyzed ingredients that carry the “gluten-free” claim. The proposed rule would apply to foods such as sauerkraut, yogurt, pickles, cheese, green olives, vinegar, and FDA-regulated beers. Intended to address the uncertainty of interpreting test methods in terms of intact gluten, the finalized rule would mandate manufacturers to maintain records demonstrating: (i) “the food meets the requirements of the gluten-free labeling final rule prior to fermentation or hydrolysis”; (ii) “the manufacturer has adequately evaluated its process for any potential gluten cross-contact”; and (iii) “where a potential for gluten cross-contact has been identified, the manufacturer has implemented measures to prevent the introduction of gluten into the food during the manufacturing process.” The agency also intends to evaluate the compliance of distilled…
The U.S. Food and Drug Administration (FDA) plans to set requirements for fermented and hydrolyzed foods or those containing fermented or hydrolyzed ingredients and carry the “gluten-free” claim. The proposed rule would apply to foods such as sauerkraut, yogurt, pickles, cheese, green olives, vinegar, and FDA-regulated beers. Intended to address the uncertainty of interpreting test methods in terms of intact gluten, the finalized rule would mandate manufacturers to maintain records demonstrating: (i) “the food meets the requirements of the gluten-free labeling final rule prior to fermentation or hydrolysis; (ii) “the manufacturer has adequately evaluated its process for any potential gluten cross-contact”; and (iii) “where a potential for gluten cross-contact has been identified, the manufacturer has implemented measures to prevent the introduction of gluten into the food during the manufacturing process.” The agency also intends to evaluate the compliance of distilled foods by using scientifically valid methods to determine the absence…
A consumer has filed a proposed class action against Whole Foods Market Group Inc. alleging that the company’s Gluten Free All-Natural Nutmeal Raisin Cookies list evaporated cane juice (ECJ) as an ingredient to mislead consumers about the amount of sugar contained in the product. Bryant v. Whole Foods Mkt. Grp. Inc., No. 15-1001 (E.D. Mo., removed to federal court June 25, 2015). The complaint, originally filed in Missouri state court in April, asserts that ECJ should be listed as sugar under the U.S. Food and Drug Administration’s (FDA’s) rule that food labels use the most common or usual name of an ingredient. According to the April complaint, the plaintiff seeks class certification and damages. The lawsuit joins a wave of litigation against food manufacturers presenting the same argument. Several courts have dismissed the cases without prejudice or granted stays after FDA indicated that it would publish updated guidance about ECJ.…
A consumer has filed a putative class action alleging the $1 surcharge that P.F. Chang’s imposes on its gluten-free menu items violates the Americans with Disabilities Act (ADA) by discriminating against those with celiac disease. Phillips v. P.F. Chang’s China Bistro, No. 15-344 (N.D. Cal., removed to federal court January 23, 2015). The complaint asserts that P.F. Chang’s maintains a separate gluten-free menu that charges $1 more than seemingly identical items on its regular menu and that it does not add a similar surcharge for other dietary accommodations. The plaintiff alleges that the surcharges lack justification because they “do not reflect additional costs of ingredients” and some of the items “are the same as the non-gluten free options or contain fewer ingredients” or are “naturally gluten free.” The plaintiff seeks certification of a California class and violations of the state’s Unruh Act, Disabled Persons Act and Unfair Competition Law. Issue…
The U.S. Food and Drug Administration (FDA) recently issued a consumer update warning that the lupin (or lupine) legume could cause allergic reactions in susceptible individuals, especially those with existing peanut allergies. According to FDA, the use of lupin-derived ingredients has increased in recent years because they are used in gluten-free products as a substitute for other flours. “Although lupin is a food staple for many Europeans—who may be more aware of its allergenic properties and are accustomed to seeing it listed as a food ingredient—it is relatively new to the U.S. market,” notes FDA, which “is actively monitoring complaints of lupin allergies.” To this end, the agency has asked consumers and healthcare professionals to report lupin-related adverse events through the FDA reporting system. See FDA Consumer Update, August 15, 2014. Issue 535
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