A California federal court has dismissed portions of a lawsuit alleging that B&G Foods mislabeled its taco shells as containing “0g Trans Fat” despite the product’s use of partially hydrogenated oil as an ingredient. Walker v. B&G Foods, No. 15-3772 (N.D. Cal., order entered February 8, 2016). Five of the plaintiff’s seven claims involved alleged mislabeling of the taco shells as free of trans fat; the court disposed of the claims, finding that the Nutrition Labeling and Education Act required the trans fat level be listed as 0 grams if the content is less than one-half of a gram, thus preempting the claims. The court then turned to the non-labeling claims, through which the plaintiff argued the taco shells were unsafe for consumption based on the trans fat content and thus amounted to a breach of an implied warranty of merchantability and a violation of California’s Unfair Competition Law. Citing…
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Citing annual costs of $1,500 in wasted food to the average American family, and a “dizzying array of misleading labels,” U.S. Sen. Dick Blumenthal (D-Conn.) is reportedly poised to introduce a proposal that would establish uniform national standards for food dating. “Terms like ‘best by,’ ‘sell by’ and ‘use by’ have no bearing on food safety, leading 90 percent of Americans to throw away food past those dates out of mistaken concern for food safety risks,” Blumenthal said in a February 19, 2016, Facebook post. According to the Hartford Courant, Blumenthal’s legislation would require labels to indicate the duration of a product’s quality by providing dates preceded by “best if used by.” The proposal would also mandate that “high-risk foods,” including hot dogs and deli meats, to carry labeling with “expires on” dates. A similar initiative was included in provisions of the Food Recovery Act of 2015 (H.R. 4184), which…
Led by the Vermont Maple Sugar Makers’ Association (VMSMA), the maple syrup industry has penned a February 15, 2016, letter asking the U.S. Food and Drug Administration (FDA) to take enforcement action “concerning misrepresentative labeling of food products whose labels incorrectly indicate the presence of maple syrup.” The signatories—which include the International Maple Syrup Institute and North American Maple Syrup Council, as well as several state organizations—identify several instant oatmeal, natural sweetener and other products that allegedly violate Food, Drug and Cosmetic Act regulations by using the word “maple” in their product descriptions without containing maple syrup. Drawing parallels to the agency’s conclusion that Hampton Creek’s Just Mayo® eggless sandwich spread was mislabeled because “mayo” has “long been used and understood as shorthand or slang for mayonnaise,” the letter argues that the term “maple” “has long been used and understood to refer to ‘maple syrup.’” As VMSMA opines, “This unchecked…
An Ohio appeals court has affirmed a lower court decision finding that two consumers’ mislabeling allegations against The Kroger Co. are preempted by the Poultry Products Inspection Act (PPIA). Arnold v. Kroger Co., No. C-150291 (Ohio Ct. App., 1st App. D., Hamilton Cty., order entered January 22, 2016). The consumers alleged Kroger’s chickens were not subjected to “a humane environment” as the company advertised and thus were not worth the premium the store charged. The trial court dismissed the claims as preempted by the PPIA, and the plaintiffs appealed. The appeals court was unpersuaded by the plaintiffs’ argument that the Food Safety and Inspection Service’s (FSIS’) inspection and approval of Kroger’s slaughtered chickens were insufficient to determine whether the chickens were in a humane environment while alive. “FSIS has determined that humane treatment of poultry directly implicates its fitness for human consumption because ‘under the PPIA, poultry products are more…
Russian MP Oleg Mikheyev has reportedly asked the government to require “graphic warning labels” on fast-food packaging in an effort to stop the spread of obesity and improve the health of Russian citizens. Mikheyev, who previously proposed a tax on “junk food,” also argued that producers of food products such as potato chips or soft drink be required to include photos of illnesses caused by excessive consumption of those products. “People know that sugar can cause type-2 diabetes, but few of them actually know what the trophic ulcers look like. Same goes for kidney stones that appear because of excessive consumption of salty foods or cholesterol plaques,” Mikheyev reportedly wrote in a letter to Prime Minister Dmitry Medvedev. Russian politicians have discussed mandatory labeling for fast food and other food products in the past, including in a July 2015 bill that proposed restricting fast-food and alcohol ads. See RT, January…
An online campaign launched by Consumers Union asks, “Have you ever quickly selected one box of crackers over another because the box said it was ‘natural’? Food companies know you probably have. They also know they can slap the word ‘natural’ on just about anything.” The advocacy group urges consumers to sign its petition urging the U.S. Food and Drug Administration (FDA) to prohibit use of the term “natural” or take action to define it. Findings of a December 2015 Consumer Reports survey reportedly indicate respondents want stricter standards for natural and organic labeling on meat, poultry and packaged and processed foods. Issue 592
Whole Foods and a consumer have reached an agreement in a lawsuit alleging the company misrepresented the prices of its products before the point of purchase. Burgos v. Whole Foods Mkt. Grp., No. 15-7357 (D.N.J., stipulation filed January 20, 2016). The plaintiff alleged that some of Whole Foods’ price displays failed to meet the state’s requirements, which she argued amounted to violations of New Jersey’s consumer-protection statute. The stipulation specifies that the individual plaintiff’s claims are dismissed with prejudice, but the plaintiff’s proposed class is not bound to the terms of the agreement. Issue 591
A new study suggests that warning labels on sugar-sweetened beverages (SSBs) could dissuade parents from purchasing these products for children. Christina A. Roberto, et al., “The Influence of Sugar-Sweetened Beverage Health Warning Labels on Parents’ Choices,” Pediatrics, February 2016. Based on research involving tobacco warning labels, the study aimed to determine if SSB warning labels could (i) educate consumers about potential “health harms” “above and beyond” existing calorie declarations; (ii) “influence parents’ intentions to buy SSBs for their children”; and (iii) “influence parents’ perceptions and intentions toward nonlabeled beverages.” It also evaluated warning label phrasing and “parents’ beliefs about proposals to put warning labels on SSBs.” Surveying 2,381 primary caregivers of children ages 6 to 11, researchers randomly assigned parents to one of six conditions: “(1) no warning label (control); (2) calorie label; or (3–6) 1 of 4 text versions of a warning label (eg, Safety Warning: Drinking beverages with…
A California federal court has allowed plaintiffs in a false advertising putative class action to dismiss their claims of fraud based on the “extra virgin” quality of Filippo Berio olive oil in favor of pursuing their allegations that the products are falsely labeled as “made in Italy.” Kumar v. Salov N. Am. Corp., No. 14-2411 (N.D. Cal., Oakland Div., order entered January 8, 2016). The plaintiff sought to dismiss the “extra virgin” portion of the claims after the discovery process revealed the olive oil was sold in both clear-glass bottles—which the plaintiff asserted could damage the quality of the oil because of the light allowed through the glass—and tinted-glass bottles. Additional details about the claims’ survival of a motion to dismiss appear in Issue 554 of this Update. In February 2015, Shook Partner Ann Havelka authored an article for Law360 examining the case, arguing that it is “an example of…
A plaintiff has filed two similar lawsuits against H.J. Heinz Co. and Rockstar, Inc. alleging the companies’ products wrongfully bear “Made in the USA” label claims because they contain “foreign ingredients.” Alaei v. Rockstar, Inc., No. 15-2959 (S.D. Cal., filed December 31, 2015); Alaei v. H.J. Heinz Co., No. 15-2961 (S.D. Cal., filed December 31, 2015). Heinz 57® sauce, one complaint argues, is misrepresented as manufactured in the United States because some of its ingredients, including “turmeric, tamarind extract, and jalapenos, among other ingredients,” are “not from the United States.” Similarly, Rockstar’s Sugar Free beverage, described as “Made in the USA” on the label, contains “various amounts of taurine, guarana seed extract, and milk thistle extract, which, among other ingredients in Defendants’ products, are not from the United States.” These foreign ingredients, the complaint argues, are problematic because they are not subject to the same strict regulatory requirements and “are…
