A California federal court has granted certification to buyers of Kellogg Co.’s Raisin Bran, Frosted Mini-Wheats and Smart Start who allege they were misled about the health benefits of the products because they contain added sugar. Hadley v. Kellogg Sales Co., No. 16-4955 (N.D. Cal., San Jose Div., entered August 17, 2018). The complaint also contained an allegation about Nutri-Grain bars, but the court declined to certify that class. Kellogg argued that the plaintiffs did not meet the predominance standards for certification, asserting that most consumers did not see the challenged phrases “lightly sweetened” and “wholesome goodness” on the product packaging and further that “the health impact of consuming added sugar—and thus the alleged falsity of the challenged statements—differs for each consumer.” The court agreed as to the “wholesome goodness” phrase on Nutri-Grain bars packaging but disagreed that most consumers would not have seen “lightly sweetened” phrasing based on its…
Tag Archives healthy
In a speech at the National Food Policy Conference in Washington, D.C., U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb reportedly summarized the agency’s plans, including (i) defining “healthy” for use with a food-labeling icon, (ii) implementing delayed updates to nutrition labels, and (iii) creating a strategy for reduction in salt consumption. Gottlieb reportedly said FDA will explore possible changes to nutrient-content claims. “People eat foods, not nutrients,” he is quoted as saying. “This is why we’re asking the important question of whether a modernized definition of ‘healthy’ should go beyond nutrients to better reflect dietary patterns and food groups, like whole grains, lowfat dairy, fruits and vegetables and healthy oils.” FDA will also propose short-term, voluntary targets for salt and sodium reduction from the current average daily intake of 3,400 milligrams to no more than 3,000 milligrams. “There remains no single more effective public health action related to…
Concerns about how or whether the term “healthy” should be used in food labeling and packaging prompted the U.S. Food and Drug Administration (FDA) to hold a public comment meeting on the issue on March 9, 2017. Current FDA regulations allow the use of the term “healthy,” as well as similar terms, as implied nutrient-content claims. However, the criteria for use vary for different food categories, and the criteria themselves are linked to elements of the nutrition facts panel and serving size regulations—both of which have undergone significant changes in recent years. FDA also received a citizen petition in 2015 from Kind LLC, a producer and distributor of snack bars, requesting the agency amend its regulations defining the use of the term with respect to total fat intake and emphasizing whole foods and dietary patterns instead of specific nutrients. Accordingly, FDA’s 2016 publication of “Use of the Term ‘Healthy’ in…
A consumer has filed a putative class action against Dole Packaged Foods, LLC alleging the company’s products contain too much added sugar to be labeled as “rich in nutrients” or “healthy.” Amaya v. Dole Packaged Foods, LLC, No. 15-7734 (C.D. Cal., filed October 18, 2016). The complaint first details research connecting added sugar intake to detrimental health effects, including type 2 diabetes, cardiovascular disease and metabolic syndrome, then asserts that Dole’s products containing added sugar are misleadingly labeled. “Dole’s representations that Dole Fruit & Oatmeal contains ‘real fruit!’ and ‘No Trans Fat or Cholesterol,’ and is ‘a healthy . . . Breakfast’ are false, or even if literally true at least highly misleading, in light of the substantial added sugar in the Dole Fruit & Oatmeal products,” the plaintiff argues. The complaint also alleges the labeling claims are unlawful because (i) a statement indicating that the product is free of…
The U.S. Food and Drug Administration (FDA) has opened a docket and released industry guidance on the use of the term “healthy” in the labeling of human food products. Responding to Kind LLC’s citizen petition asking the agency to align its nutrient content claim regulations with federal dietary guidance, FDA invites “public comment on the term ‘healthy’, generally, and as a nutrient content claim in the context of food labeling.” Current regulations reportedly establish “the parameters for use of the implied nutrient content claim ‘healthy’ or related terms… on the label or in labeling of a food to suggest that a food, because of its nutrient content, may be useful in creating a diet that is consistent with dietary recommendations, if the food meets certain nutrient conditions, and the claim is made with an explicit or implicit claim or statement about a nutrient.” Among other things, the conditions take into…
A California federal court has refused to dismiss a consumer’s putative class action alleging Nature’s Way misrepresents its coconut oil as a healthy alternative to butter, margarine and other cooking oils despite containing higher levels of saturated fat. Hunter v. Nature’s Way Products, No. 16-0532 (S.D. Cal., order entered August 12, 2016). The court dismissed Nature’s Way’s argument that it was not making a nutrient content claim, finding that a “Variety of Healthy Uses” phrase on the label was near enough to “representations about ‘Non-hydrogenated; No trans fat’ and claims regarding medium chain triglyceride content” to plausibly suggest a nutrient content claim. The claim of misrepresentation was plausibly pleaded as well, the court held, but granted Nature’s Way’s motion to dismiss claims under California’s Unfair Competition Law for lack of specificity. The court also refused to find standing to pursue injunctive relief because the plaintiff was unlikely to purchase the…
The U.S. Patent and Trademark Office has rejected Whole Foods Market’s attempt to trademark the phrase “World’s Healthiest Grocery Store,” finding the statement to be merely descriptive and puffery. The company currently owns a trademark in “America’s Healthiest Grocery Store,” which it reportedly earned by using the mark in commerce for several years before registration. The rejection notice cites other examples of rejected puffery, including Boston Beer Co.’s attempt to register “The Best Beer in America.” Whole Foods may update and refile its application within six months. See The Washington Post, July 28, 2016. Issue 613
A meta-analysis examining the effect of dairy fats on health has identified “a small positive association between butter consumption and all-cause mortality, no significant association with incident CVD [cardiovascular disease] or CVD subtypes, and a modest inverse association with type 2 diabetes.” Laura Pimpin, et al., “Is Butter Back? A Systematic Review and Meta-Analysis of Butter Consumption and Risk of Cardiovascular Disease, Diabetes, and Total Mortality,” PLoS One, June 2016. Relying on data from nine studies that included 636,151 unique participants with 6.5 million person-years of follow-up, researchers reported that “each daily serving of butter (14g/d) was associated with a 1% higher risk of death” from all causes. The pooled data, however, also showed that each 14-gram serving of butter per day was associated with a 4-percent lower incidence of type 2 diabetes, while the studies found no association between butter consumption and stroke, coronary heart disease or total CVD.…
The U.S. Food and Drug Administration (FDA) will reconsider how “healthy” may be used on food packaging following the evaluation of a citizen petition filed by Kind LLC. FDA previously challenged Kind’s use of “healthy” on its nut bars, which contain more fat than permitted due to the inclusion of nuts, and Kind changed its packaging accordingly but filed a petition for reconsideration of the issue. The existing guidelines were created during the 1990s and reflect accepted standards of that time, including a preference for foods low in fat without regard to the nature of the fat. FDA has now allowed Kind to use “healthy and tasty” on its packaging “only in text clearly presented as its corporate philosophy, where it isn’t represented as a nutrient content claim, and does not appear on the same display panel as nutrient content claims or nutrition information.” Further details about the dispute appear…
The U.S. Supreme Court has denied certiorari in a Federal Trade Commission (FTC) lawsuit against POM Wonderful LLC and Roll Global LLC alleging the companies made false or misleading health claims about their pomegranate-derived products. POM Wonderful LLC v. FTC, No. 15-525 (U.S., certiorari denied May 2, 2016). The U.S. Court of Appeals for the District of Columbia previously upheld a Commission decision finding POM misled consumers by claiming its products treat, prevent or reduce the risk of heart disease and prostate cancer, with some claims purported to be supported by clinical studies. “I am pleased that the POM Wonderful case has been brought to a successful conclusion,” FTC Chair Edith Ramirez said in a May 2, 2016, press release. “The outcome of this case makes clear that companies like POM making serious health claims about food and nutritional supplement products must have rigorous scientific evidence to back them up.…
