The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed initiating a regular rulemaking process to extend until December 30, 2017, an emergency measure that allows retailers to use standard point-of-sale warning messages for bisphenol A (BPA) exposures from canned and bottled foods and beverages. Under Proposition 65 (Prop. 65) regulations, consumer products that contain any chemical known to the state to cause reproductive toxicity or cancer must display a “clear and reasonable” warning on “labeling, shelf tags, shelf signs, menus or any combination thereof as long as the warning is prominent and conspicuous.” Taking into account comments received on the emergency measure, OEHHA believes that the proposed regulation “will provide consistent, informative, and meaningful warnings to consumers about significant exposures to BPA.” These warnings will included a link to OEHHA’s website, “which will contain fact sheets, links to informational materials on BPA from other authoritative…
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The U.S Congress has passed legislation (S.764) requiring food and beverage manufacturers to disclose the use of ingredients made with genetically modified organisms (GMOs). Crafted by U.S. Sens. Pat Roberts (R-Kan.) and Debbie Stabenow (D-Mich.) and backed by the Organic Trade Association (OTA), the bill defines bioengineered foods as those intended for human consumption that contain genetic material “modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques” and “for which the modification could not otherwise be obtained through conventional breeding or found in nature.” If signed by President Barack Obama (D) as expected, the legislation would direct the Secretary of Agriculture to establish within two years a mandatory standard for the disclosure of GMO ingredients in applicable products by “text, symbol, or electronic or digital link” such as a QR code, excluding URLs not embedded in the link. The new rules would also allow certified organic products bear “non-GMO” labels…
Diageo will reportedly provide nutritional information on its alcohol product packaging, beginning with Johnnie Walker® Red Label. Changes to Smithwick’s® and Guinness® packaging will follow. The global label will reportedly include the product’s alcohol by volume, serving size, calorie and sugar content and allergens, while the U.S. label will mimic the Nutrition Facts panel format regulated by the U.S. Food and Drug Administration. In a June 30, 2016, press release, a Diageo official said the change is “based on what consumers want,” noting, “Current labeling on most alcoholic beverages does not reflect how people consume alcohol and therefore does not allow consumers to understand how much alcohol is in their favorite drink or what is in their glass.” See Forbes, June 30, 2016. Issue 610
The Alcohol and Tobacco Tax and Trade Bureau (TTB) has proposed wine labeling revisions to address concerns about the accuracy of labeling information for wines that contain more than 7-percent alcohol by volume but are exempt from label approval requirements. According to TTB, the regulations that govern wine labeling include (i) 27 CFR 24, which requires wine containers to feature “the name and address of the wine premises where bottled or packed; the brand name; the alcohol content; the kind of wine; and the net contents of the container,” and (ii) 27 CFR 4, which governs “the use of one or more grape variety names as a type designation, the use of type designations of varietal significance, the use of vintage dates, and the use of appellations of origin on wine labels,” such as the use of American viticultural area (AVA) names. Wines not intended for interstate or foreign commerce,…
Following a May 2016 refusal to invalidate a San Francisco regulation requiring warning labels on sugar-sweetened beverages (SSBs), a California court has granted an injunction on enforcement pending appeal. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., order entered June 7, 2016). Details on the May 2016 decision appear in Issue 605 of this Update, while additional information on the lawsuit appears in Issues 573, 586 and 592. The ordinance, set to take effect July 25, 2016, requires billboards and other public advertisements to include a warning that “[d]rinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.” The American Beverage Association (ABA) challenged the regulation on First Amendment grounds, but the court denied a preliminary injunction, finding the industry group’s claims unlikely to succeed. “[A]n injunction pending appeal may be appropriate, even if the Court believed its analysis in denying preliminary injunctive relief is…
A California state court has certified a class challenging the source and grade of Safeway Inc.’s olive-oil products, which are labeled as “extra virgin” and “Imported from Italy” despite being manufactured from olives grown and pressed outside that country. Kumar v. Safeway Inc., No. RG14726707 (Cal. Super. Ct., Alameda Cty., order entered May 24, 2016). The plaintiff proposed two classes: one composed of consumers who purchased the products relying on the “extra virgin” label and another with consumers who relied on the “Imported from Italy” claims. The court assessed the classes in accordance with each requirement—ascertainability, commonality, typicality, adequacy and superiority—and found the plaintiff’s class definitions demonstrably met each standard. “Defendant’s argument that Plaintiff is required to demonstrate that class members have a common understanding of what ‘extra virgin’ means is unsupported by the authorities cited, and is not well taken,” the court noted. The plaintiff also leads a challenge…
The U.S. Judicial Panel on Multidistrict Litigation has consolidated several putative class actions against a number of companies alleging they labeled their grated-parmesan products as “100% Parmesan” despite containing cellulose. In re 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., MDL No. 2705 (J.P.M.L., transfer order entered June 2, 2016). The consolidated cases include 16 lawsuits and 33 potential tag-along actions filed against Kraft, Target, Albertsons and others in jurisdictions across the country. The parties petitioned for centralization in the federal courts of Missouri, Minnesota, Pennsylvania and other states, but the court chose the Northern District of Illinois as “a convenient and accessible forum for actions filed throughout the country regarding products sold nationwide.” The parties also disputed whether the cases should be consolidated into a single multi-product MDL or separate MDLs grouped by the product or primary corporate defendant; the court held that “a single, multi-product MDL is…
A class of consumers in New York and California, represented by the Center for Science in the Public Interest (CSPI), has brought suit in the Eastern District of New York seeking restitution, actual and punitive damages, and injunctive relief against the Kellogg Co. for allegedly misbranding its Cheez-It® “Whole Grain” snack crackers. The complaint alleges that Cheez-It® “Whole Grain” crackers contain only a small amount of whole grain, but that the product packaging is designed in such a way as to mislead consumers to believe that the product is produced primarily with whole grains. The class contends that the primary ingredient is enriched flour, however, the product package states conspicuously the words “Whole Grain” on five of the six packaging panels. And when purchasing the crackers, lead plaintiffs sought a product that was predominantly whole grain. The complaint further alleges that the class members would not have purchased the Cheez-It®…
Health Canada and the Canadian Food Inspection Agency have determined that AquAdvantage Salmon “is as safe and nutritious for humans and livestock as conventional salmon.” Approving the genetically engineered (GE) salmon for sale in Canada, the two agencies cited a similar decision issued by the U.S. Food and Drug Administration in November 2015. “Health Canada requires labelling for food products, including genetically modified foods, where clear, scientifically established health risks or significant changes to the nutritional qualities of the food have been identified and can be mitigated through labelling,” concludes the agency. “In this case, given that no health and safety concerns were identified, there are no special labeling requirements for AquAdvantage Salmon.” See Health Canada News Release, May 19, 2016. Issue 605
The U.S. Food and Drug Administration (FDA) has announced revisions to the Nutrition Facts label designed to emphasize “the link between diet and chronic diseases such as obesity and heart disease.” In addition to highlighting calories, servings per container and serving-size declarations through a combination of increased type size and boldface, the new labels will (i) require “added sugars” in grams and as a percent daily value, (ii) require Vitamin D and potassium values, and (iii) make Vitamins A and C optional. Citing scientific research, FDA has updated several daily values and eliminated “Calories from Fat,” but increased mandatory serving sizes to better reflect food consumption data. Food packages containing one to two servings that are typically consumed in one sitting must list calories and nutritional information for the entire packaged portion. Manufacturers must also use dual-column labels for 24-ounce sodas, ice cream pints and other foods and beverages that…
