Rebbl Inc. faces a putative class action alleging its “super herb” beverages are falsely advertised and labeled because the claims made for their ingredients are “not supported by sound scientific evidence.” Richburg v. Rebbl Inc., No. 18-1674 (E.D.N.Y., filed March 16, 2018). The complaint alleges that beverages in Rebbl’s product line of “Elixirs” and “Proteins” contain several ingredients—turmeric, reishi, maca, matcha, ashwaganda, medium chain triglyceride oil and coconut milk—that the company falsely asserts can reduce stress and improve beauty, health or wellness. Claiming violations of New York’s General Business Law, breach of warranties, fraud and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
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During negotiations for updates to the North American Free Trade Agreement, the Trump administration is reportedly seeking to stop the enactment of laws mandating food labels that warn of high levels of sugar, salt and fat. Officials in Mexico and Canada are reportedly considering regulatory actions similar to those in Chile, which approved requirements for black-box warnings on food labels in 2016. Although public health experts reportedly praise Chile’s new rules, the United States and other countries, along with food industry trade organizations, fought the legislation before the World Trade Organization. The New York Times quoted Dr. Camila Corvalán, a nutritionist at the University of Chile who helped develop the warning labels, as saying, “The fact that the industry is freaking out is reassuring, but at the same time it’s worrying that the U.S. government is trying to defend the position of the food industry.”
A California state court has reportedly approved a class action settlement that will provide vouchers or cash to state residents who bought Safeway olive oil allegedly falsely labeled as “imported from Italy.” Kumar v. Safeway, No. RG14726707 (Cal. Super. Ct., entered March 16, 2018). The class alleged that Safeway labeled its olive oil as imported and “extra virgin” but manufactured it from olives grown and pressed outside Italy. The settlement reportedly offers class members $0.25 to $0.75 or vouchers worth up to $1.50; attorneys were awarded more than $1.4 million in fees and expenses and the named plaintiff will receive $6,490.
A New York federal court has issued a decision seemingly aiming to spur action from the U.S. Food and Drug Administration (FDA), which has purportedly exhibited “no discernible activity” to establish a definition of “natural.” In re Kind LLC “Healthy and All Natural" Litig., No. 15-2645 (S.D.N.Y., entered March 2, 2018). Kind LLC previously filed motions to dismiss or stay claims in multidistrict litigation alleging that its labeling was false and misleading. After allowing stays, the court has indicated that it might proceed with the case without waiting for input from FDA or the U.S. Department of Agriculture (USDA) on the definitions of "healthy" and "natural." The court first found that the consumers' challenge to Kind's claim that its products are made without genetically modified organisms (GMOs) was not preempted by the National Bioengineered Food Disclosure Standard, holding that the relevant state consumer-protection statutes “do not impose a GMO standard or requirement.…
A consumer has filed a putative class action alleging that Brew Dr. Kombucha misleadingly advertises its products as containing “billions” of probiotic bacteria. Bazer v. Brew Dr. Kombucha, No. 2018-2943 (Ill. Chancery Ct., Cook Cty., filed March 5, 2018). The plaintiff asserts that he bought several bottles of kombucha in different flavors because he heard about the benefits of the beverage and the probiotic bacteria it purportedly contains. According to the complaint, tests showed that the product contained about 50,000 bacterial colonies rather than the "billions" advertised on the bottle’s label. Claiming violations of consumer-protection laws, breach of warranties and unjust enrichment, the plaintiff seeks class certification, disgorgement and attorney’s fees.
With companies creating plant-based foods that look and taste like real meat—and even getting product placement in grocery meat cases—USA Today reports that U.S. cattle ranchers are disputing the categories of the products developed and sold by these companies, including Impossible Foods and Beyond Meat. The United States Cattlemen’s Association has filed a petition with the U.S. Department of Agriculture (USDA) calling for the agency to establish beef labeling that would limit the use of the terms “beef” and “meat” to products derived from animal sources and inform consumers about the difference between such products and “alternative protein sources.” The petition is reportedly aimed not only at “plant-based meat” substitutes such as tofu but also at “clean meat” grown in a lab from animal stem cells. The firm Allied Market Research reportedly predicts that plant-based meat businesses could sell $5.2 billion worth of products by 2020. About 60 percent of…
The U.S. Food and Drug Administration (FDA) has announced the launch of a “major educational campaign for consumers” about changes to the Nutrition Facts label on food products. The campaign will include educational videos, social media outreach and “user-friendly” websites to help consumers understand the relationship between their daily dietary choices and the risk of chronic disease. FDA will also provide guidance to industry on label updating. The announcement included information on new guidance on added sugars for producers of honey, maple syrup and certain cranberry products; guidance on serving sizes; and final guidance on what evidence FDA reviews on various non-digestible carbohydrates that may be added to food and labeled as fiber. The agency also indicated that it will evaluate industry petitions related to non-digestible carbohydrates.
A federal court in California has again denied class certification in a lawsuit alleging that Gerber Products Inc. misbranded baby food, finding that the plaintiff is not entitled to injunctive relief and that the proposed damages models will not provide the correct measure of restitution. Bruton v. Gerber Prods. Co., No. 12-2412 (N.D. Cal., entered February 13, 2018). The complaint alleged that certain “Nature Select” and “Organic” lines of Gerber baby foods made unlawful and deceptive nutrient claims and that the labels did not contain federally required warnings of the high calorie content of the products. After initial rulings on summary judgment were appealed to the Ninth Circuit, the remaining allegations included a claim that the labels violated California’s Unfair Competition Law (UCL) and a claim for unjust enrichment. The court found that although the plaintiff had standing under the UCL, a class seeking injunctive relief can be certified only…
The U.S. House of Representatives has passed a bill to amend the Federal Food, Drug and Cosmetic Act that would reduce nutrition- and calorie-labeling requirements on menus and bar civil liability for any restaurant or retail food establishment accused of violating the law’s requirements. The Common Sense Nutrition Disclosure Act would allow restaurants to use average calorie counts or ranges on menus instead of exact counts and would permit online-only calorie disclosures. The bill would permit “reasonable-basis” disclosures that allow for variations in serving sizes, human error in preparation or variations in ingredients. It would also allow restaurants to decide whether to disclose content for a whole item or on a per-serving basis.
Bumble Bee Foods LLC has agreed to settle a proposed class action alleging the company’s labels indicate its Medium Red Smoked Salmon Fillet in Oil product contains wild-caught smoked salmon despite actually containing farm-raised salmon with artificial smoke flavoring. Rodriguez v. Bumble Bee Foods LLC, No. 17-2447 (S.D. Cal., motion for settlement filed February 1, 2018). Under the terms of the agreement, Bumble Bee will begin repackaging the product in the second quarter of 2018, specify the salmon is “smoke-flavored,” omit claims that it is “premium” or “medium red” and omit images that suggest the fish was wild-caught. The motion for settlement seeks a hearing date for a motion that will specify the incentive award, the amount of attorney’s fees, and costs.
