Researchers have reportedly found that consumers are unsure what "natural," “organic” and “Non-GMO Project Verified” mean when the phrases appear on food labels. Konstantinos G. Syrengelas et al., "Is the Natural Label Misleading? Examining Consumer Preferences for Natural Beef," Applied Economic Perspectives and Policy, October 2017; Brandon R. McFadden, et al., “Effects of the National Bioengineered Food Disclosure Standard: Willingness to Pay for Labels that Communicate the Presence or Absence of Genetic Modification,” Applied Economic Perspectives and Policy, October 2017. To investigate a petition to the U.S. Department of Agriculture asserting that "natural" labeling misleads consumers, researchers conducted an online choice experiment to determine whether including a definition of "natural" on a label deterred or encouraged study participants to pay a premium for steak. The researchers apparently found that the participants were unwilling to pay a premium if they either identified themselves as familiar with the definition of "natural" or if they…
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Penguin Trading, Inc., the maker of Fruit Bliss organic dried fruits, faces a putative class action alleging the company’s products contain as much as 80 percent slack-fill. Buso v. Penguin Trading, Inc., No. 17-7025 (C.D. Cal., filed September 22, 2017). The plaintiff argues that he would not have bought Fruit Bliss’ Organic Deglet Nour Dates, sold in opaque containers, if he knew the container was “substantially empty.” Asserting violations of California consumer-protection laws, the plaintiff seeks class certification, compensatory and punitive damages, injunctive relief and attorney’s fees.
The U.S. Food and Drug Administration (FDA) has proposed an additional extension for compliance with the menu labeling rules required by the Affordable Care Act. Under the proposed rule, the current compliance deadline of July 26, 2018, would be extended to January 1, 2020, for manufacturers with $10 million or more in annual food sales; for manufacturers with less than that amount, the date would be extended to January 1, 2021.
The U.S. Food and Drug Administration (FDA) has warned Nashoba Brook Bakery that it has misbranded its granola by listing “Love” as one of its ingredients. The warning letter informed the company that “'love' is not a common or usual name of an ingredient, and is considered to be intervening material because it is not part of the common or usual name of the ingredient.” “Intervening material” refers to information that is not required in FDA labeling and can distract from required content. The letter also cited the bakery for health and sanitary violations as well as misbranding violations for whole-wheat products that contain corn meal.
A consumer has filed a putative class action alleging the Hain Celestial Group's “ColdPressed” juice products are mislabeled because a third-party company, which manufactures some of the product, heats the juice during high-pressure processing, causing a “compositional change." Davis v. Hain Celestial Grp., No. 17- 5191 (E.D.N.Y., filed September 3, 2017). The complaint challenges two product lines, BluePrint ColdPressed Juice and BluePrint Organic fruit drinks, which the plaintiff claims are represented as “raw and organic” and “never heated.” The plaintiff asserts that high-pressure processing heats the juice, causing changes in the “microbial, enzymatic and bacterial activity and intact cellular structures,” resulting in the products no longer being raw or fresh. Claiming violations of New York consumer protection laws along with fraudulent misrepresentation, implied warranty of merchantability and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
The U.S. Food and Drug Administration (FDA), the Center for Science in the Public Interest (CSPI) and the National Consumers League have filed a joint motion to stay a lawsuit intended to compel the agency to implement the delayed menu labeling rule required by the Affordable Care Act. Ctr. for Sci. in the Pub. Interest v. Price, No. 17-1085 (D.D.C., filed September 15, 2017). FDA has agreed to: (i) confirm in the Federal Register on or before December 31, 2017, that the compliance date of the rule is May 7, 2018; (ii) publish draft or final guidance by December 31, 2017; and (iii) announce by “rule, guidance, public statement, publically-available document, or otherwise,” if the compliance date could or will be extended past May 2018. If FDA fails to meet those terms, the advocacy groups may move for, and FDA will not oppose, expedited hearing of the lawsuit. Additional details appear…
Partner Katie Gates Calderon was a panelist at the Food and Drug Law Institute (FDLI) Food Advertising, Labeling and Litigation Conference in Washington, D.C., September 13-14, 2017. She joined Jessica Almy, policy director at The Good Food Institute, and moderator Stuart M. Pape of Polsinelli PC in a discussion of “Naming of Plant-Based Food Products and Standards of Identity.” The panel explored legal issues in naming and the role of standards of identity in the ever-growing world of alternative products.
The U.S. Food and Drug Administration's (FDA's) Center for Food Safety and Applied Nutrition has notified the Good Food Institute (GFI) that the agency has been unable to reach a decision on the advocacy group's March 2017 petition requesting recognition for commonly used—if technically inaccurate, per FDA definitions—food names such as "almond milk," "soymilk," "almond butter" and "cashew butter." The letter informs GFI that the agency was "not able to reach a decision on your petition within the first 180 days of its receipt, nor as of the date of this letter, because of other agency competing priorities."
A consumer has filed a projected class action alleging Boar's Head Provisions Co. Inc. misleadingly markets its cheeses as "natural" despite containing genetically modified organisms (GMOs). Forsher v. Boar's Head Provisions Co. Inc., No. 17-4974 (N.D. Cal., filed August 25, 2017). The complaint asserts that GMOs are "not natural" and that "consumers do not expect [GMOs] to be present in foods labeled 'natural'"; further, "reasonable consumers do not believe there are any differences between foods that are labeled 'natural' and those that are labeled 'organic.' Reasonable consumers believe that 'organic' foods do not contain GMOs, and that foods labeled 'natural' are likewise free of such substances." The plaintiff seeks an injunction, restitution, damages and attorney's fees for alleged violations of state consumer-protection statutes as well as unjust enrichment and intentional misrepresentation.
Following a delay of federal rules requiring restaurants, retailers and other foodservice establishments to post calorie counts, New York City has agreed to postpone enforcement of its comparable municipal codes until May 7, 2018, matching the implementation date of the federal rules. Nat’l Assoc. of Convenience Stores v. New York City Dep’t of Hygiene, No. 17-5324 (S.D.N.Y., stipulation filed August 25, 2017). The plaintiffs filed a lawsuit July 2017 to prevent the city from enforcing a municipal regulation requiring calorie and nutrition information to be posted in their establishments. The plaintiffs stipulated that they will “encourage” their members to comply with the municipal code “to the extent those provisions impose requirements that are identical to the requirements” of the Food, Drug and Cosmetic Act and U.S. Food and Drug Administration regulations. In addition, the parties agreed to delay arguments on the plaintiff’s motion for a preliminary injunction and the city’s motion…
