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The European Commission has announced the adoption of strategies to support biodiversity and “transition to a sustainable EU food system that safeguards food security and ensures access to healthy diets sourced from a healthy planet.” “The coronavirus crisis has underlined the importance of a robust and resilient food system that functions in all circumstances, and is capable of ensuring access to a sufficient supply of affordable food for citizens,” a question-and-answer resource on the program stated. “It has also made us acutely aware of the interrelations between our health, ecosystems, supply chains, consumption patterns and planetary boundaries.” The program’s goals include reduction of chemical pesticides, preservation of soil nutrients, reduction in sales of antimicrobials for farmed animals and aquaculture, and an increase in organic farming by 2030. The program will also include the proposal of mandatory front-of-packaging nutrition labeling and efforts to reduce food waste.

A plaintiff has alleged that Frito-Lay North America Inc. fails to include a mandated front-of-package disclosure that its Cheddar and Sour Cream chips are flavored with artificial flavoring. Ithier v. Frito-Lay N. Am. Inc., No. 20-1810 (S.D.N.Y., filed March 1, 2020). The complaint asserts that "[b]ased on flavor composition analysis of the Products, the artificial flavor consists of compounds associated with butter flavor," and "butter flavor is known as enhancing and boosting the flavor of cheddar cheese." Thus, according to the plaintiff, the flavor of the chips should be listed as "Artificially Flavored Cheddar & Sour Cream." The plaintiff alleges fraud, unjust enrichment, negligent misrepresentation, breach of warranties and a violation of New York's consumer-protection statute, and he seeks class certification, injunctive relief, damages and attorney's fees.

U.K. researchers have published a meta-analysis in The BMJ asserting that physical activity calorie equivalent (PACE) labeling on food packaging "may reduce the number calories selected from menus and decrease the number of calories/grams of food consumed by the public, compared with other types of food labelling/no labelling." Daley et al., "Effects of physical activity calorie equivalent food labelling to reduce food selection and consumption: systematic review and meta-analysis of randomised controlled studies," The BMJ, December 10, 2019. The researchers identified 15 studies on PACE labeling and reportedly found that the technique may have caused the study participants to choose meals that contained 65 fewer calories on average compared to participants not exposed to PACE labels. "Most people eat three meals per day (plus two snacks); based on our findings for the number of calories consumed after exposure to PACE labelling (−65 calories), PACE labelling could potentially reduce calorie intake…

The Seventh Circuit has declined to revive a putative class action alleging that Fannie May Confections Brands Inc. misleads consumers as to the amount of chocolates contained in its boxes. Benson v. Fannie May Confections Brands Inc., No. 19-1032 (7th Cir., entered December 9, 2019). The court found that the plaintiffs suffered no "actual damage" as a result of Fannie May's allegedly misleading packaging. The plaintiffs "never said that the chocolates they received were worth less than the $9.99 they paid for them, or that they could have obtained a better price elsewhere," the court held. "That is fatal to their effort to show pecuniary loss. Moreover, their request for damages based on the percentage of nonfunctional slack-fill is quite vague. They do not explain how a percentage refund of the purchase price based on the percentage of nonfunctional slack-fill corresponds to their alleged harm. They thus failed to raise…

The National Advertising Division (NAD) has found that Insurgent Brands LLC's RXBAR labels, which feature a brief list of ingredients on the front, communicate a substantiated claim about the main ingredients in the product and do not "convey misleading implied claims about weight and proportions of the protein bar inside." Kind Inc. challenged the labels, arguing that the labels—which primarily feature ingredients on a short, numbered list—do not imply that the list is in descending order by weight, as compared to the legally mandated ingredients list featured on the back of the packaging. NAD was unpersuaded by consumer perception surveys provided by Kind, finding "significant flaws" in the studies. The board noted that the listed "3 Egg Whites" on the front label are present in the product in the form of dehydrated egg white powder, as "appropriate for a packaged, shelf-stable bar." The board also found that "the dried egg…

A California federal court has granted summary judgment to The Hershey Co. in a lawsuit alleging that its Brookside chocolates are misleadingly labeled as made with "no artificial flavors" because they contain malic acid. Clark v. Hershey Co., No. 18-6113 (N.D. Cal., entered November 15, 2019). The court found that the named plaintiffs admitted in depositions that they did not rely on the contested label. One plaintiff "did suffer an injury as required by California law—he would not have purchased the Brookside products if he had known they contained artificial ingredients," the court noted. "However, his injury was not caused by the alleged mislabeling of the product, but rather his misunderstanding that the 'No Artificial Flavors' statement meant there were no artificial ingredients whatsoever in the product. Accordingly, regardless of defendant's alleged mislabeling, [the plaintiff] would have suffered the injury." A second and third plaintiff argued that they had relied…

Following the August 2019 dismissal of a lawsuit brought by advocacy groups alleging similar facts, a group of consumers has filed a putative class action alleging that Sanderson Farms Inc. misleads consumers by marketing its chicken as “100% Natural.” Lentz v. Sanderson Farms Inc., No. 19-6570 (N.D. Cal., filed October 11, 2019). The complaint alleges that “Sanderson’s advertising misleads consumers in four ways,” including representations that (i) the chickens “were not given antibiotics or other pharmaceuticals,” (ii) the chickens “were raised in a natural environment,” (iii) “there is no evidence that the use of antibiotics and other pharmaceuticals in poultry contributes to the evolution of antibiotic-resistant bacteria” and (iv) the chicken products “do not contain any antibiotic or pharmaceutical residue.” A previous case brought by two advocacy groups was dismissed because of a lack of standing; the court found that the groups could not show sufficient injury because “they were…

U.K. researchers have published the findings of a comparison of calorie counts on menu items in restaurants that feature labeling of those counts and in restaurants without such labeling. Dolly R.Z. Theis & Jean Adams, "Differences in energy and nutritional content of menu items served by popular UK chain restaurants with versus without voluntary menu labelling: A cross-sectional study," PLOS One, October 16, 2019. The researchers compared offerings from "the 100 most popular UK restaurant chains by sales" and found that 42% of the restaurants offered nutritional information, and 13 of those voluntarily provided menu labeling. The researchers were reportedly able to establish that restaurants that provide calorie labeling on menus offered food with 45% less fat and 60% less salt, though they could not identify whether the labeling caused the companies to formulate products with lower fat and salt contents.

A consumer has filed a putative class action arguing that Dutch Gold Honey Inc. sells honey that lacks the antioxidants for which consumers purchase buckwheat honey, allegedly amounting to fraudulent misrepresentation and fraudulent concealment. Wolfe v. Dutch Gold Honey Inc., No. 19-4562 (E.D. Penn., filed October 1, 2019). “Unknown to Plaintiff and the Class, the Buckwheat Honey sold by Dutch Gold does not contain the antioxidants that consumers prize in buckwheat honey,” the plaintiff asserts. “Moreover, because Dutch Gold buys honey that has been harvested prematurely, Dutch Gold (or the sources it purchases honey from) must dry the honey out, so it heats its Buckwheat Honey to high temperatures for a long enough time that the antioxidants normally found in buckwheat honey are destroyed.” The plaintiff challenges in particular a statement from Dutch Gold’s website asserting that its buckwheat honey “has been demonstrated to have higher levels of antioxidants than…

The U.S. Government Accountability Office (GAO) has conducted a study on how "use by" and "best by" dates on food products could be improved to reduce food waste. The agency examined actions by the U.S. Department of Agriculture (USDA) and Food and Drug Administration (FDA) and concluded with the recommendation that "USDA and FDA develop a mechanism to facilitate coordination with relevant nonfederal stakeholders on actions related to date labels," according to the agency. "USDA and FDA agreed with our recommendation and are planning actions to implement the recommendation."

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