Israel’s Ministry of Health has reportedly ruled that Heinz ketchup can no longer be called “ketchup” because of its low tomato content. Israeli food company Osem first targeted the product in January 2015 by sending a letter to supermarkets blasting the product and filing an $18 million class action on behalf of consumers. Osem argued that lab tests showed small bottles of Heinz ketchup contained 20 percent tomato concentrate and large bottles just 17 percent—compared to the 39 percent advertised on the bottle—despite Israeli regulations dictating that ketchup must contain at least 35 percent tomato concentrate. The health ministry agreed with Osem, finding that Heinz can no longer call its product “ketchup” and must be labeled “tomato seasoning” instead. The ruling does not affect Heinz’s English-language labels. Heinz’s local importer, Diplomat, has filed a petition to lower the minimum requirements from 10 percent tomato solids (the equivalent of 35 percent tomato…
Tag Archives labeling
The U.S. Food and Drug Administration has issued draft guidance for industry titled “A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods—Part II (Menu Labeling Requirements in Accordance with 21 CFR 101.11.” When finalized, the guidance is intended to assist chain establishments with 20 or more locations (e.g., grocery stores, quick service restaurants, pizza delivery outlets, convenience stores, movie theaters, fast food restaurants) comply with menu-labeling requirements for standard menu items, including self-service offerings. See Federal Register, September 16, 2015. Issue 578
A California federal court has dismissed a putative class action alleging that Jim Beam Brands and Beam Suntory Import mislabel Jim Beam® bourbon bottles because the label calls the product “handcrafted” despite its machine-based manufacturing process. Welk v. Beam Suntory Imp. Co., No. 15-0328 (S.D. Cal., order entered August 21, 2015). The plaintiff had alleged that a reasonable consumer would be fooled by the bourbon label because the production process for the “handmade” product requires “little to no human supervision, assistance or involvement.” Details about the complaint appear in Issue 556 of this Update. The court first denied the distillery’s motion to dismiss under California’s safe harbor doctrine, finding that although Jim Beam could prove the Alcohol and Tobacco Tax and Trade Bureau had approved the label, the evidence did not indicate whether the agency investigated and approved including decisions finding for Jim Beam and its sibling brand Maker’s Mark®,…
A New Jersey federal court has dismissed putative class actions against Whole Foods Market Group Inc., Wegmans Food Markets Inc. and Acme Markets Inc. alleging that they misrepresented their bread products as “freshly baked” or “baked in-store” despite actually being frozen, processed or baked elsewhere. Mladenov v. Wegmans Food Mkts. Inc., No. 15-0373 (D.N.J., order entered August 26, 2015); Mladenov v. Whole Foods Mkt. Grp. Inc., No. 15-0382 (D.N.J., order entered August 26, 2015); Mao v. Acme Markets Inc., No. 15-0618 (D.N.J., order entered August 26, 2015). Additional information about the three complaints appears in Issue 549 of this Update. The court found holes in each of the plaintiffs’ amended complaints, noting that they lacked “any detail as to what Plaintiffs purchased, the cost of these items, and the supposed value of what they received,” which are necessary to a price-premium claim. “Nowhere in their complaints or opposition do Plaintiffs…
The U.S. Food and Drug Administration (FDA) has issued five warning letters to the distributors of pure powdered caffeine, citing two fatalities linked to caffeine toxicity as evidence that the products “are dangerous and present a significant or unreasonable risk of illness or injury to consumers.” Equating 1 teaspoon of pure caffeine to 25 cups of coffee, FDA also warns consumers not to purchase or use powdered caffeine as “it is nearly impossible to accurately measure pure powdered caffeine with common kitchen measuring tools and you can easily consume a lethal amount.” In particular, the agency plans to “aggressively monitor the marketplace” for pure powered caffeine being sold as a dietary supplement. The warning letters not only find the products adulterated under the Federal Food, Drug, and Cosmetic Act, but argue that labeling directs consumers to use difficult measurements such as one-sixteenth of a teaspoon. “Consumers are unlikely to have…
A consumer has filed a lawsuit against Fifth Generation, Inc. alleging that its Tito’s Handmade Vodka® is not “handmade” as claimed on the label because it is produced through a mechanized process. Wilson v. Fifth Generation, Inc., No. 15-561 (M.D. Ala., filed August 5, 2015). The complaint joins a number of other lawsuits alleging similar facts and claims against Tito’s Handmade Vodka®. Fifth Generation has filed a motion to dismiss a similar lawsuit in Massachusetts federal court, arguing that the claims have “no basis in law or common sense” and no reasonable person could believe that a product sold nationally “was made exclusively in human hands in some backwoods, ad hoc operation, without any mechanical equipment.” Emanuello v. Fifth Generation, Inc., No. 15-11513 (D. Mass., motion filed August 5, 2015). In May and July 2015, courts dismissed lawsuits targeting “handmade” claims made on Maker’s Mark® labels, finding that the “handmade” claim “obviously cannot…
A California federal court has denied a plaintiff’s attempt to obtain Bigelow’s financial records in a putative class action alleging that the company mislabeled its tea. Khasin v. R.C. Bigelow Inc., No. 12-2204 (N.D. Cal., order entered August 12, 2015). The plaintiff argued that the records would help him calculate what portion of the profits he would seek. The court sided with Bigelow, which argued that “its profits and costs are irrelevant because the proper measure of restitution in a food labeling case is the price premium attributable to the challenged label (the difference between the product as labeled and the product as received), not its profits.” The court then cited a similar decision in another food labeling lawsuit with the same plaintiff. Issue 575
The U.S. Judicial Panel on Multidistrict Litigation has consolidated 11 putative class actions against Kind LLC alleging that its snack bars are misleadingly marketed as “healthy” despite a high saturated fat content and low levels of nutrients. Kind LLC “All Natural” Litigation, MDL No. 2645 (S.D.N.Y., transfer order entered August 7, 2015). The court found that the actions involved common questions of fact, and all parties favored centralization except one plaintiff who did not oppose the motion. The lawsuits were filed after the U.S. Food and Drug Administration sent a letter to Kind warning against the use of “healthy” on several of its products. Details about the first of these lawsuits appear in Issue 562 of this Update. Issue 575
Two consumers have filed a lawsuit against Diageo PLC alleging that Red Stripe® is falsely marketed as Jamaican because it has been brewed and bottled in Latrobe, Pennsylvania, since 2012. Dumas v. Diageo PLC, No. 15-1681 (S.D. Cal., filed July 29, 2015). Red Stripe® packaging “boldly states that it is a ‘Jamaican Style Lager’ that contains ‘The Taste of Jamaica,’” and displays the logo of the Jamaican brewery that previously made it, the complaint asserts. “The only clue that Red Stripe is no longer a Jamaican beer is that on the border of the new labels, in obscure white text, the bottle says: ‘Brewed & Bottled by Red Stripe Beer Company Latrobe, PA.’” The plaintiffs argue that the text cannot be seen on packages of 12 bottles of Red Stripe® and is only visible on packages of six if a single bottle is removed and examined. Consumers pay higher prices…
A consumer has filed a putative class action against Kraft Foods Group Inc. alleging that the company’s fat-free cheese is mislabeled as “natural” because it contains artificial or synthetic ingredients, including “artificial color.” Quiñones-Gonzalez v. Kraft Foods Grp., Inc., No. 15-1892 (D.P.R., filed July 27, 2015). The plaintiff asserts that she relied on the “natural” label to mean that the product, “at a minimum, has no artificial ingredients or characteristics. The public is further led to believe the Product will be healthier, safer and/or produced to a higher standard.” She seeks class certification, an injunction, restitution and damages for allegations of deceptive and unfair marketing and unjust enrichment. A class was certified in June 2015 in a similar lawsuit pending in California federal court; details about the ruling appear in Issue 570 of this Update. Issue 573
