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An Illinois federal court has granted Kraft Heinz Foods Co.'s motion to dismiss a lawsuit alleging the labeling noting the inclusion of mozzarella cheese and tomato sauce in Bagel Bites is misleading. Jackson v. Kraft Heinz Foods Co., No. 21-5219 (N.D. Ill., E. Div., entered August 3, 2022). "Central to all of Plaintiff s claims is the notion that the Product's label misleads consumers by representing that the Product contains ‘mozzarella cheese. REAL cheese,' and 'tomato sauce,' but omitting that it contains additives," the court found. "However, a product that says it contains mozzarella cheese and tomato sauce when the Product does, in fact, contain mozzarella cheese and tomato sauce is not misleading to the reasonable consumer simply because its label does not list its additives." The court also noted that the standard of a "reasonable consumer" can vary according to the product at issue. "[W]hile Plaintiff contends reasonable consumers do…

An Illinois federal court has granted Kellogg Sales Co.'s motion to dismiss a consumer's putative class action complaint alleging that Frosted Chocolate Fudge Pop-Tarts lacked the milkfat (milk and butter) necessary for a product to be described as fudge. Reinitz v. Kellogg Sales Co., No. 21-1239 (C.D. Ill., entered June 2, 2022). As evidence for the claim, the plaintiff provided a book by Molly Mills, who was described as "one of today's leading authorities on fudge"; Kellogg argued that Mills' book, which contains 40 recipes for fudge, included multiple recipes that do not contain milkfat. "Plaintiff fails to support that the average consumer would believe a fudge product must, of necessity, contain milkfat," the court found. Comparing a similar case dismissed when the plaintiff could not show that a reasonable consumer would be misled by the strawberry designation on the Pop-Tart label, the court dismissed the complaint but granted leave to…

The U.S. Food and Drug Administration (FDA) has announced that it will conduct quantitative consumer research on the use of "voluntary symbols that could be used in the future to convey the nutrient content claim 'healthy.'" The agency is simultaneously "developing a proposed rule that would update when manufacturers may use the 'healthy' nutrient content claim on food packages." "Updating labeling and making it more accessible helps empower consumers," the constituent update states. "In particular, claims and symbols can help consumers better understand nutrition information and identify foods that contribute to a healthy eating pattern. Manufacturers may also reformulate products to improve their nutritional value so they can use the claim."

A consumer has filed a projected class action alleging Mondelez International Inc.'s Green & Black's chocolate packaging misleads as to the product's cacao content. Lee v. Mondelez Int'l Inc., No. 22-1127 (S.D.N.Y., filed February 9, 2022). The labels indicate that the products are 60%, 70% or 85% cacao, but "the back labels uniformly reveal that the principal chocolate ingredient is not cacao but cocoa, which [] is an inferior, highly processed derivative of the cacao bean that has been stripped of the nutritional qualities that make dark chocolate appealing to its consumers." The complaint explains that the ingredient list—"organic bittersweet chocolate (organic chocolate liquor, organic cane sugar, organic cocoa butter, organic vanilla extract)—makes no "mention of cacao butter, but only of cocoa butter." Further, the front labeling also states that the product is "made from 'the finest Trinitario cacao beans,'" the plaintiff argues, which allegedly implies that the products "retain…

The U.S. Food and Drug Administration (FDA) has released a list of the draft and final guidance topics that the agency is prioritizing for 2022. The list includes guidance on allergens, cell-cultured foods, heavy metals in juice and labeling of plant-based alternatives to milk and animal-derived foods. According to a caveat in the constituent update, "Although the FDA's intent is to publish all draft and final guidance topics on the list, modifications in plans may be needed to support emerging issues and Administration priorities."

A plaintiff has filed a putative class action alleging that Kellogg Sales Co. misleads consumers as to the quantity of vegetables in its MorningStar "Veggie" products, including "Veggie Burgers," "Veggie Dogs," "Veggitizers" and "Veggie Chik'n." Kennard v. Kellogg Sales Co., No. 21-7211 (N.D. Cal., filed September 17, 2021). Kellogg represents its products as "Veggie," the complaint asserts, "but this representation is false or at least highly misleading because the predominant non-water ingredient in all of the Veggie Products is not vegetables—or even vegetable-based—but instead, grain or oil." The consumer also argues that the "Veggie" products violate California law "by using product names that include the term 'VEGGIE' while failing to disclose the percentage of vegetables in the products, which have a material bearing on the price and consumer acceptance of the Veggie Products." The plaintiff alleges violations of California consumer-protection statutes as well as breach of warranties and seeks class…

Shook Partner Cary Silverman has authored a report exploring the rise in class actions filed in New York, which, he explains, "is largely a result of lawsuits targeting businesses that sell food and beverages." Class Action Chaos: The Rise of Consumer Class Action Lawsuits in New York, created in partnership with the New York Civil Justice Institute, details how "the percentage of class action lawsuits targeting products that New Yorkers place in their shopping carts, grab at a grocery store, or buy at a restaurant has gone up." "Lawsuits claiming that businesses mislead consumers in how they labeled, marketed, or advertised food made up about one-third of deceptive practices class actions in 2015. Now, these 'food court' lawsuits account for about 60% of New York’s consumer class actions – exceeding deceptive practices claims against all other products and services combined. Over 100 food class actions were filed in New York…

A plaintiff has filed a putative class action alleging Dietz & Watson Inc. misleads consumers by naming its product "Smoked Provolone Cheese" when the cheese's smoky flavor comes from "smoke flavor" rather than "slow cooking over a fire of wood chips." Jones v. Dietz & Watson Inc., No. 20-6018 (E.D.N.Y., filed December 9, 2020). The plaintiff alleges the cheese should be labeled "Natural Smoke Flavored Provolone Cheese" under U.S. Food and Drug Administration regulations on characterizing flavors. "Even if consumers were to view the ingredient list, a reasonable consumer would have no reason to know that listing 'smoke flavor' forecloses the possibility the Product was also subject to some smoking," the complaint asserts. "However, the Product has not undergone any real smoking, which is deceptive and misleading to consumers." The plaintiff alleges violations of New York's consumer-protection statutes, the Magnuson-Moss Warranty Act, fraud and negligent misrepresentation.

The U.S. Food and Drug Administration (FDA) has issued final guidance on the use of potassium chloride on food labels. The guidance advises "food manufacturers of its intent to exercise enforcement discretion for the name 'potassium salt' in the ingredient statement on food labels as an alternative to 'potassium chloride' to better inform consumers that it is a salt substitute." "Potassium chloride, in some instances, can be used as a partial substitute for sodium chloride (referred to as 'salt') in food processing and manufacturing," the constituent update notes. "Providing this enforcement discretion may help facilitate consumers’ choices to decrease their sodium consumption, if manufacturers use potassium chloride as a substitute ingredient for some sodium chloride."

A consumer has filed a putative class action alleging that Inventure Foods Inc., which produces the T.G.I. Friday's line of frozen foods, produces its "mozzarella sticks" with cheddar. Nason v. Inventure Foods Inc., No. 20-10141 (S.D.N.Y., filed December 3, 2020). The plaintiff cites the ingredient list, which lists only cheddar and not mozzarella, and asserts that "cheddar is a 'hard' cheese less suitable for chewing and lacks the dairy taste of real mozzarella." The complaint further argues that "mozzarella is more nutritious because it contains more calcium and less fat and calories than cheddar." The plaintiff alleges violations of the Magnuson-Moss Warranty Act, New York's consumer-protection statutes and negligent misrepresenation.

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