Tag Archives labeling

Children's Health Defense, an organization founded and chaired by Robert F. Kennedy, Jr., has filed a lawsuit alleging that Beech-Nut Nutrition Co. misrepresents its baby-food products as "100% natural" despite containing pesticide residues. Children's Health Def. v. Beech-Nut Nutrition Co., No. 2019 CA 4475 (D.C. Super. Ct., filed July 8, 2019). The organization alleges that Beech-Nut markets its products as "100% natural," which the company website apparently defines as "simple, all-natural ingredients from places that nurture their fruits and vegetables and care about their quality. We never use artificial preservatives—nobody really needs modified starch, salt or harsh spices, especially babies. … We're not a fan of pesticides; our internal standards are significantly stricter than federal requirements." The complaint asserts that an independent laboratory tested the products and found pesticide residues in several varieties. The organization alleges a cause of action under the District of Columbia Consumer Protection Procedures Act and…

A California federal court has dismissed with prejudice a lawsuit alleging that Trader Joe's Co.'s "pure manuka honey" was "adulterated by the inclusion of cheaper honey." Moore v. Trader Joe's Co., No. 18-4418 (N.D. Cal., entered June 24, 2019). The court's decision notes a transcript from oral argument in which the plaintiff explained, "[T]here could be other flowers in the immediate area where the manuka flowers are. So the bees are not just going to the manuka flowers. They are going to the clover flowers. They are going to the … dandelions and they are all coming back to - to store the nectar in the same hive and so it's already adulterated when it gets into the hive." "In sum, Plaintiffs clarified that their adulteration theory is premised on the bees visiting different floral sources and returning to the hive resulting in a lower manuka pollen count, rather than…

A consumer has filed a putative class action alleging that Tropicana Manufacturing Co. misrepresents its orange juice as "natural" because it contains a variation of malic acid that can be used as an artificial flavoring ingredient. Johnson v. Tropicana Mfg. Co. Inc., No. 19-1164 (S.D. Cal., filed June 20, 2019). The complaint, echoing similar actions filed by the same plaintiff's firm against other companies, alleges that the ingredient "malic acid" on the product's ingredient list is not the naturally occurring l-malic acid but rather d-l malic acid, which "is manufactured in petrochemical plants from benzene or butane—components of gasoline and lighter fluid, respectively—through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts." The plaintiff alleges violations of California's consumer-protection laws and seeks class certification, restitution, damages, corrective advertising and attorney's fees.

U.K. Environment Secretary Michael Gove has reportedly announced that a law requiring a full listing of ingredients on prepackaged food will take effect by the summer of 2021 and will include a two-year implementation period allowing businesses to adapt. "Natasha's Law" bears the name of a 15-year-old who died from anaphylaxis after an allergic reaction caused by consumption of a Pret A Manger baguette. Current regulations require that prepackaged food made on-site must be displayed near a sign prompting customers to ask about allergens.

A plaintiff has alleged that Danone North America misleads consumers by labeling its Dannon and Oikos yogurts as featuring "vanilla with other natural flavors" because the products contain "less vanilla flavor derived from vanilla beans than their name suggests." Andriulli v. Danone N. Am., No. 19-5165 (S.D.N.Y., filed June 2, 2019). The plaintiff asserts that the product flavor "should be labeled 'Vanilla-Vanillin Extract/Flavoring/Powder, Imitation' so consumers are not misled as to the flavor of the Products." Further, the complaint states, Oikos vanilla-flavored yogurt includes beta carotene, which "has the effect of modifying the color of the product closer to the color consumers associate with a product flavored exclusively by vanilla bean components — a tanner, darker shade like in the following stock image." The complaint then features a light orange square. "This coloring makes the consumer less likely to question or probe into the amount and type of vanilla flavor…

The U.S. Food and Drug Administration (FDA) has sent a letter to food and beverage manufacturers recommending that they primarily use "Best If Used By" on their packages to help consumers who may be confused by the use of the phrase "Sell By." The letter explains that the Grocery Manufacturers Association and Food Marketing Institute have recommended that food manufacturers use the distinguishing phrases "Best If Used By"—for foods that may decline in quality after a specific date but remain safe to eat—and "Use By," which should appear on the label of perishable foods that should be discarded after a specific date for safety reasons. "As approximately 80% of the foods in the US are regulated by the FDA, we would like to inform our regulated food industries that FDA strongly supports industry’s voluntary industrywide efforts to use the 'Best if Used By' introductory phrase when choosing to include a…

Shook Partner Lindsey Heinz and Associate Elizabeth Fessler discuss the regulatory and legal implications of food advertising, especially through social media, in the podcast available below. What types of scientific substantiation do companies need to supply for labeling claims, particularly those related to health and safety? Do the U.S. Food and Drug Administration (FDA) and Federal Trade Commission (FTC) look to websites and social media when reviewing products for regulatory compliance? What should companies know about retweeting or sharing third-party endorsements? Listen to the podcast (6:53) and read the transcript, available below. LINDSEY HEINZ Have your cake and tweet it too—managing social media marketing campaigns related to food and beverage products can be a tricky legal line to tow. ELIZABETH FESSLER Social media continue to be a powerful marketing tool. And as access to technology expands, social media marketing campaigns are increasingly likely to play a significant role in marketing…

A consumer has filed a putative class action alleging that Nature's Path Foods USA Inc. misleads consumers by marketing the filling of its Wildberry Acai Toaster Pastries as containing high levels of acai berries despite containing more apples, raspberries, blueberries and other fruits. Louis v. Nature's Path Foods USA Inc., No. 19-2584 (E.D.N.Y., filed May 1, 2019). The complaint features an image of the front and back labels, alleging that acai berries account for 45 percent of the berries shown in packaging images, and the plaintiff asserts that the "use of the term 'acai' in the Product name and the numerical superiority of the acai berries depicted relative to other berries cause a reasonable consumer to expect the Products contain more acai berries than other identified and named fruit ingredients." The plaintiff also alleges that the ingredient list includes a number of fruits—apples, blueberries, strawberries and others—in whole form but…

A lawsuit alleging that StarKist misleads consumers by paying to feature the American Heart Association's (AHA's) Heart-Check Mark will continue after a New York federal court refused to dismiss the complaint. Warner v. StarKist Co., No. 18-0406 (N.D.N.Y., entered March 25, 2019). The court refused to dismiss the plaintiff's allegation that the Heart-Check Mark materially misleads consumers—finding "StarKist’s failure to argue that the omission of language indicating it paid to place the Heart Check-Mark on its products would not mislead a reasonable consumer"—but noted that "this is a close call, which could be revisited at the summary judgment stage." The court dismissed the plaintiff's request for an injunction because it found "no 'real and immediate' threat of future injury" because the plaintiff's "own allegations indicate that he will not purchase or pay as much for the product going forward."

The U.S. Department of Agriculture has announced an April 9, 2019, public meeting to receive comments on the United States' positions for the Codex Committee on Food Labelling meeting to be held in Canada in May 2019. Among the announced topics are (i) "Proposed draft Guidance for the Labelling of Non-Retail Containers"; (ii) "Proposed draft Guidelines of Front-of-Pack Nutrition Labelling"; (iii) "Innovation—use of technology in food labelling"; (iv) "Labelling of alcoholic beverages"; and (v) "Criteria for the definition of 'high in' nutritional descriptors for fats, sugars, and sodium."

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