A consumer has filed a putative class action against Dole Packaged Foods, LLC alleging the company’s products contain too much added sugar to be labeled as “rich in nutrients” or “healthy.” Amaya v. Dole Packaged Foods, LLC, No. 15-7734 (C.D. Cal., filed October 18, 2016). The complaint first details research connecting added sugar intake to detrimental health effects, including type 2 diabetes, cardiovascular disease and metabolic syndrome, then asserts that Dole’s products containing added sugar are misleadingly labeled. “Dole’s representations that Dole Fruit & Oatmeal contains ‘real fruit!’ and ‘No Trans Fat or Cholesterol,’ and is ‘a healthy . . . Breakfast’ are false, or even if literally true at least highly misleading, in light of the substantial added sugar in the Dole Fruit & Oatmeal products,” the plaintiff argues. The complaint also alleges the labeling claims are unlawful because (i) a statement indicating that the product is free of…
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Representing a group of three consumers, the Center for Science in the Public Interest (CSPI) has filed a lawsuit against PepsiCo, Inc. alleging the company’s Naked line misleads consumers by naming and labeling its juices with foods “perceived by consumers to be highly nutritious, like kale,” but manufacturing the products without “the ingredient profile represented.” Lipkind v. PepsiCo, Inc., No. 16-5506 (E.D.N.Y., filed October 4, 2016). “Consumers are paying higher prices for the healthful and expensive ingredients advertised on Naked labels, such as berries, cherries, kale and other greens, and mango,” said CSPI Litigation Director Maia Kats in an October 4, 2016, press release. “But consumers are predominantly getting apple juice, or in the case of Kale Blazer, orange and apple juice. They’re not getting what they paid for.” The complaint asserts Naked products “predominantly consist of cheaper and less nutritious ingredients like apple juice” and targets the label’s “no…
The Ninth Circuit Court of Appeals has reversed a grant of summary judgment to Dole Packaged Foods in a lawsuit alleging the company misleads consumers by labeling its packaged fruit products as “all natural” in violation of California consumer-protection statutes. Brazil v. Dole Packaged Foods, No. 12-1831 (9th Cir., order entered September 30, 2016). The appeals court reviewed the evidence before it—including the plaintiff’s testimony that the “all natural” label deceived him, the label itself, Dole’s consumer surveys and U.S. Food and Drug Administration warning letters—and found that “this evidence could allow a trier of fact to conclude that Dole’s description of its products as ‘All Natural Fruit’ is misleading to a reasonable consumer.” Accordingly, the court reversed the grant of summary judgment and remanded the case to the district court. The Ninth Circuit affirmed the district court’s dismissal of claims alleging Dole sold “illegal products.” The plaintiff “seems to be…
A consumer has filed a putative class action against Dave’s Gourmet, Inc. alleging the company deceives its customers by listing evaporated cane juice (ECJ) on its sauce labels rather than the U.S. Food and Drug Administration’s (FDA’s) preferred term, sugar. Kazemi v. Dave’s Gourmet, Inc., No. 16-5269 (N.D. Cal., filed September 14, 2016). The complaint asserts that the plaintiff and other members of the putative class “would have paid less for the Products or would not have purchased the Products had they known that the Products’ listing of ECJ as an ingredient claim was false, misleading, and deceptive.” For alleged violations of California’s and Florida’s consumer-protection statutes, the plaintiff seeks class certification, injunctions, restitution, damages and attorney’s fees. Issue 618
A New York federal court has stayed a proposed class action alleging Kind LLC misleads consumers by describing its products as “all natural” and free of genetically modified organisms. In re Kind, No. 15-2645 (S.D.N.Y., order entered September 15, 2016). The court noted that the U.S. Food and Drug Administration (FDA) requested comments on the use of the term “natural” in food labeling in November 2015 and closed the comment period in May 2016, suggesting that FDA is “prepared to address the core issues in this case.” The plaintiffs voluntarily dismissed their claims that Kind’s use of “healthy” on its labels was misleading following FDA’s determination that it would permit Kind to use the term as the agency considers redefining it. Details on that determination appear in Issue 604 of this Update. Issue 618
The U.S. Food and Drug Administration (FDA) has published a September 2016 Consumer Update describing how to determine if a product contains real maple syrup as a flavoring agent. Specifically, the agency urges consumers to look at the ingredient list for the term “maple syrup” and not rely solely on depictions of maple leaves or the word “maple” displayed on the front of packaging. “Current regulations allow use of terms like ‘maple,’ ‘maple-flavored,’ or ‘artificially maple-flavored’ on the food label without having any maple syrup in the product, as long as it contains maple flavoring,” clarifies FDA. “This flavoring could come from a number of sources, including sap or bark from the maple tree. Or it could come from the herb fenugreek, which can impart a maple-like flavor.” Noting that similar rules apply to some fruit flavorings, the agency explains that terms such as “artificial flavors” or “natural and artificial…
The U.S. Food and Drug Administration (FDA) has opened a docket and released industry guidance on the use of the term “healthy” in the labeling of human food products. Responding to Kind LLC’s citizen petition asking the agency to align its nutrient content claim regulations with federal dietary guidance, FDA invites “public comment on the term ‘healthy’, generally, and as a nutrient content claim in the context of food labeling.” Current regulations reportedly establish “the parameters for use of the implied nutrient content claim ‘healthy’ or related terms… on the label or in labeling of a food to suggest that a food, because of its nutrient content, may be useful in creating a diet that is consistent with dietary recommendations, if the food meets certain nutrient conditions, and the claim is made with an explicit or implicit claim or statement about a nutrient.” Among other things, the conditions take into…
Several companies have formed a new group to promote a balanced discussion of alcoholic beverage consumption and address implementation of U.K. labeling recommendations. The Alcohol Information Partnership (AIP) reportedly plans to draw attention to research showing that most adults consume alcohol responsibly and that binge drinking is in decline. In addition, the companies behind the new initiative reportedly plan to meet with the U.K. Department of Health before adopting its voluntary guidelines, which, in part, ask labels to declare that there is “no safe level” of alcoholic beverage consumption. “Alcohol misuse is an incredibly serious issue,” said AIP Director-General Dave Roberts. “As a society, we should continue to have rigorous debate about how best we continue to tackle and reduce alcohol misuse. But the debate has become increasingly imbalanced and characterized by poor representation of the evidence… The Alcohol Information Partnership is here to bring balance back to the debate…
Researchers with the University of Pennsylvania Perelman School of Medicine’s Center for Health Incentives and Behavioral Economics have authored a study claiming that adolescents are less likely to purchase sugary beverages that carry warning labels. Eric VanEpps and Christina Roberto, “The Influence of Sugar-Sweetened Beverage Warnings,” American Journal of Preventive Medicine, September 2016. The study asked 2,202 adolescents ages 12-18 to imagine selecting one of 20 popular 20-ounce beverages from a vending machine. This digital survey included 12 sugar-sweetened beverages (SSBs) that displayed (i) no warning label, (ii) a calorie label, or (iii) one of four labels warning that SSBs contribute to (a) “obesity, diabetes and tooth decay”; (b) “weight gain, diabetes and tooth decay”; (c) “preventable diseases like obesity, diabetes and tooth decay”; or (d) “obesity, Type 2 diabetes and tooth decay.” The results evidently suggested that “77 percent of participants who saw no label said they would select…
The U.S. Food and Drug Administration (FDA) has extended until July 26, 2018, the deadline for posting the calorie counts of “certain gums, mints, and roll candy products” sold in glass-front vending machines, as well as for complying with type-size front-of-pack (FOP) labeling requirements. Published December 1, 2014, and effective December 1, 2016, the final rule requires businesses operating 20 or more vending machines to clearly disclose calorie counts “in a direct and accessible manner” if calories are not easily visible to prospective purchasers via FOP labeling. According to FDA, “several trade associations requested the extension for glass-front vending machines because of concerns regarding the requirements for the size of front-of-pack (FOP) calorie disclosures.” The trade associations apparently noted that “current voluntary FOP labeling programs require calorie information to be presented in a type size that ranges from 100 to 150 percent of the size of the net weight contents…
