A California federal court has dismissed a putative class action against Maker’s Mark Distillery, Inc. alleging that its whiskey is mislabeled as “handmade” because it uses machines to produce the product. Nowrouzi v. Maker’s Mark Distillery, Inc., No. 14-2885 (S.D. Cal., order entered July 27, 2015). Additional information about the complaint appears in Issue 548 of this Update. The court first denied the distillery’s motion to dismiss on safe harbor grounds, finding that the record is unclear as to whether “handmade” claims fall within the purview of the Tobacco Tax and Trade Bureau. The decision then turned to whether the public would likely be deceived by the “handmade” label. Maker’s Mark cited a May 2015 decision in a similar lawsuit finding that a reasonable person would understand that “handmade” is not meant to indicate that substantial equipment was not used in production, and the court found the reasoning persuasive. “This…
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The U.S. Food and Drug Administration (FDA) has issued draft guidance for industry about the agency’s current thinking regarding the disclosure of small amounts of nutrients and dietary ingredients on nutrition labeling. The document focuses on how the agency intends to use its enforcement discretion when a conflict occurs between compliance with § 101.9(c) and § 101.9(g) of Title 21 of the Code of Federal Regulations such that compliance with both sections is not possible. FDA is also considering whether to revise both sections and, if so, may reportedly amend or withdraw the draft guidance. Those wishing to submit comments on the draft guidance must do so by September 28, 2015. See Federal Register, July 30, 2015. Issue 573
The U.S. Food and Drug Administration (FDA) has told a California federal court that the agency will not issue guidance until 2016 about the use of “evaporated cane juice” (ECJ)—which plaintiffs nationwide assert is merely sugar—on food and beverage labeling. Swearingen v. Late July Snacks LLC, No. 13-4324 (N.D. Cal., agency letter filed July 13, 2015); Swearingen v. Healthy Beverage LLC, No. 13-4385 (N.D. Cal., agency letter filed July 13, 2015). The court issued an order in May 2015 requesting FDA to indicate whether the agency would issue guidance within 180 days. “FDA is actively working on a final guidance to address this issue,” Associate Commissioner for Policy Leslie Kux writes. “However, because of competing priorities, FDA cannot commit to issuing a decision within 180 days. . . . We have received a substantial number of comments and extensive amounts of supporting materials. FDA is obligated to review and consider…
A consumer has filed a putative class action against Foster Poultry Farms, Inc. alleging that the company’s label misleads by displaying an American Humane Association (AHA) certification logo because that certification does not indicate a higher, more humane standard for raising chickens. Leining v. Foster Poultry Farms, Inc., No. BC588044 (Cal. Super. Ct., filed July 13, 2015). The complaint asserts that Foster Farms markets itself as a humane producer of chicken products and charges higher prices accordingly. The plaintiff believed that this marketing message communicated that the chickens at Foster Farms “lived a life without disease and discomfort and were afforded a quick and painless death.” She argues, however, “the AHA certification standards permit practices throughout all phases of the production process that, if known, would not be considered humane either by the reasonable consumer or even under the AHA’s own definition of humane meat production.” The complaint details each of…
A consumer has filed a putative class action against Kraft Foods Group, Inc. alleging that the company’s Knudsen Hampshire Sour Cream is labeled as containing 60 calories with 3.5 grams of saturated fat per halfcup while the actual content is 240 calories with 14 grams of saturated fat. Appel v. Kraft Foods Grp., Inc., No. BC587662 (Cal. Super. Ct., Los Angeles Cty., filed July 9, 2015). The plaintiff further alleges that the listed sodium content of 10 milligrams and sugar content of one gram is incorrect because the sour cream actually contains 40 milligrams of sodium and four grams of sugar. The complaint does not provide the source of the plaintiff’s quadrupled figures. He alleges that Kraft has violated California consumer-protection statutes and seeks class certification, compensatory and punitive damages, restitution, an injunction, and attorney’s fees. Issue 572
Friends of the Earth (FOE) has released a report claiming that so-called food and agriculture industry front groups use covert tactics to influence the public discourse around agriculture, organic production and sustainability, and genetically modified organisms (GMOs). Titled Spinning Food: How Food Industry Front Groups and Covert Communications Are Shaping the Story of Food, the report alleges that these front groups not only co-opt blogs, social media and other seemingly independent platforms to spread PR messages on behalf of industry, but ally with third-party outlets—such as National Geographic and The New York Times—to create “an echo chamber of industry talking points on anti-GMO labeling, attacks on organic agriculture and a defense of agrochemicals.” “Rather than responding to changing market demands by shifting the way they do business, these companies are trying to preserve market share and win key policy battles by using ‘tobacco-style’ PR tactics,” opines the report. “While the…
A consumer has filed a proposed class action against Whole Foods Market Group Inc. alleging that the company’s Gluten Free All-Natural Nutmeal Raisin Cookies list evaporated cane juice (ECJ) as an ingredient to mislead consumers about the amount of sugar contained in the product. Bryant v. Whole Foods Mkt. Grp. Inc., No. 15-1001 (E.D. Mo., removed to federal court June 25, 2015). The complaint, originally filed in Missouri state court in April, asserts that ECJ should be listed as sugar under the U.S. Food and Drug Administration’s (FDA’s) rule that food labels use the most common or usual name of an ingredient. According to the April complaint, the plaintiff seeks class certification and damages. The lawsuit joins a wave of litigation against food manufacturers presenting the same argument. Several courts have dismissed the cases without prejudice or granted stays after FDA indicated that it would publish updated guidance about ECJ.…
A consumer has filed a putative class action against Unilever U.S., PepsiCo and the Pepsi Lipton Tea Partnership alleging that their line of Pure Leaf® Iced Teas are misleadingly labeled as “All Natural” and preservative-free because they contain citric acid, a synthetic ingredient. Ren v. Unilever U.S., Inc., No. 156463/2015 (N.Y. Sup. Ct., filed June 26, 2015). The complaint asserts that Pure Leaf® labels indicate that the products are natural and contain no preservatives despite containing citric acid, which is “industrially manufactured by fermenting certain genetically mutant strains of the black mold fungus, Aspergillus niger.” The companies use citric acid as a preservative, the complaint argues, and it disputes the accuracy of a note in the ingredient list explaining that citric acid provides tartness. The plaintiff seeks class certification, declaratory judgments, damages, restitution, an injunction, and attorney’s fees for allegations of unjust enrichment, breach of warranties, negligent misrepresentation and violations…
Citing stakeholder concerns over insufficient time to achieve appropriate implementation, the U.S. Food and Drug Administration (FDA) has extended by one year the compliance date for its controversial menu-labeling rule from December 1, 2015, until December 1, 2016. The new requirements apply to restaurants and similar retail food establishments with more than 20 locations, as well as food facilities in movie theaters, amusement parks and other entertainment venues. According to a statement from FDA Deputy Commissioner Michael Taylor, the agency will continue its ongoing discussions with covered establishments and plans to release draft guidance in August 2015 that answers frequently asked questions about complying with the rule. See FDA Statement, July 9, 2015. Issue 571
A consumer has filed a putative class action alleging that Capri Sun®, a product of Kraft Foods Group, is misleadingly represented as “natural” because it contains citric acid and “natural flavor.” Osborne v. Kraft Foods Grp., Inc., No. 15-2653 (N.D. Cal., filed June 12, 2015). The complaint asserts that citric acid is created synthetically through the fermentation of glucose, while “natural flavor” is made of “unnatural, synthetic, artificial and/or genetically modified ingredients,” so neither ingredient should be part of a “natural”-labeled product. Kraft charged a premium for Capri Sun® based on that label, the plaintiff argues, and deceived consumers into relying upon that label misrepresentation when purchasing. She seeks class certification, an injunction, damages and attorney’s fees for alleged negligent misrepresentation and violations of California’s consumer-protection statutes. Issue 570
