In a recent journal article, a Babson College marketing law professor discusses legal disputes over the labeling of food as “natural,” noting drawbacks of using courts as public policy developers on the issue. Ross D. Petty, “‘Natural’ Claims in Food Advertising: Policy Implications of Filling the Regulatory Void with Consumer Class Action Lawsuits,” Journal of Public Policy & Marketing, Spring 2015. Petty provides a history of the debate and litigation over use of the terms “natural” and “unprocessed” on food labels, beginning with U.S. Federal Trade Commission (FTC) actions against Sugar in The Raw® and Hawaiian Punch® in the 1970s. The article also details efforts by the U.S. Food and Drug Administration (FDA) and Department of Agriculture (USDA) to define “natural,” “synthetic,” “healthy” and “good source.” Petty highlights industry self-regulation, such as the processes established by the National Advertising Division of the Council of Better Business Bureaus, as a venue for…
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A group of consumers has filed a putative class action against Abbott Laboratories, Inc. alleging the company misrepresents its Similac Advance® Organic Infant Formulas because several of the ingredients are banned by federal law from use in food labeled “organic.” Marentette v. Abbott Labs., Inc., No. 15-2837 (E.D.N.Y., filed May 15, 2015). The plaintiffs challenge the products’ inclusion of beta carotene, biotin, taurine and lutein, among several other ingredients, and additionally assert that “at least one ingredient in these infant formulas is produced using genetically engineered materials—a practice forbidden in organic foods.” The complaint contends that Abbott knew that consumers would pay more for organic products and willfully misled them. The plaintiffs seek class certification, damages and an injunction for alleged violations of New York and California consumer-protection statutes, unjust enrichment and breach of warranty. Since the complaint was filed, Abbott has begun offering a version of Similac Advance® manufactured…
The Food Safety Authority of Ireland (FSAI) has issued a guidance note for industry discussing general legal requirements for use of the descriptors “artisan/artisanal,” “farmhouse,” “traditional” and “natural.” “Marketing terms are designed to resonate with consumers and are an essential part of business development in the food industry,” said Wayne Anderson, FSAI Director of Food Science and Standards. “Consumers need to be confident that the foods they purchase and consume are accurately and truthfully described on the label. Food businesses should also be confident that genuine descriptions of their food are not diluted in the marketplace by undefined marketing terms.” The labeling guidelines apply to products placed on the market after December 2016. See FSAI News Release, May 14, 2015. Issue 566
The Center for Science in the Public Interest (CSPI) has threatened to bring lawsuits against Plum Organics and Gerber Products Co. for allegedly deceptive trade practices in the marketing and labeling of their food products for babies and toddlers. In its May 11, 2015, letter addressed to Gerber and its parent company Nestlé S.A., CSPI notes that the company labels several of its products in the 2nd Foods, 3rd Foods and Graduates lines “as being composed of certain healthful ingredients, when, in fact, the Products contain substantial amounts of other less healthful, less valuable ingredients, such as apple juice, that are not identified at all on the [principal display panel].” Similar allegations appear in the letter addressed to the heads of Plum Organics concerning the company’s baby food and 4 Essential lines. The letters assert that both companies market the products as containing high amounts of “healthful, high-value ingredients, such…
A California federal court has dismissed the claims in a putative class action alleging that Flowers Bakeries misrepresents its Nature’s Own® bread as natural, healthy and wholesome despite containing synthetic ingredients, including azodicarbonamide, the “yoga mat chemical.” Romero v. Flowers Bakeries, No. 14-5189 (N.D. Cal., San Jose Div., order entered May 6, 2015). The plaintiffs argued that the brand name “Nature’s Own,” pictures of “stalks of wheat and pots of honey” and statements such as “no artificial preservatives, colors and flavors” on the packaging of the products misleads consumers into believing that the products are “a natural food product, therefore connoting that [the products] are somehow more healthy and wholesome.” The court found deficiencies in the plaintiff’s complaint, noting that she failed to clarify which misrepresentation allegations applied to which products. “It is not the task of the Court or of Defendant to diagram the intersection between the challenged products…
A New York federal court has granted in part and denied in part a motion to dismiss a lawsuit alleging that Hain Celestial’s Earth’s Best® food and body-care products are deceivingly labeled as “organic,” finding that the Organic Foods Production Act (OFPA) does not preempt the plaintiffs’ claims. Segedie v. Hain Celestial Grp., No. 14-5029 (S.D.N.Y., order entered May 7, 2015). The plaintiffs challenged 69 food products and 20 body-care products labeled “organic,” “natural” or “all natural,” arguing that they contain ingredients inconsistent with the company’s claims. In assessing precedent on preemption, the court found that a federal agency’s approval of a label does not bar any challenge to that label. The court also determined that the plaintiffs’ claims were legally sufficient as to both the “organic” and “natural” challenges. Hain argued that the ingredients in question were subject to an exemption under OFPA because they were nutrient vitamins or…
The U.S. Department of Agriculture’s (USDA’s) Food Safety & Inspection Service (FSIS) has issued guidance about new labeling requirements for raw or partially cooked mechanically tenderized beef products, including those injected with marinade or solution. In addition to stating that the products have been mechanically, blade or needle tenderized, the labels must also provide cooking instructions to ensure their proper handling by household consumers, restaurants and similar venues. Because mechanical tenderization has been linked to the possible introduction of pathogens into the interior of beef products, certain cooking time and temperature combinations can prevent foodborne illness. The labeling mandate takes effect in May 2016 or one year after the new requirements are published in the Federal Register. See USDA Press Release, May 13, 2015. Issue 565
The food industry groups challenging Vermont’s statute requiring the labeling of food containing genetically modified organisms (GMOs) have filed a notice of appeal one week after a Vermont federal court denied their motion for an injunction to stop the law from taking effect on July 1, 2016. Grocery Mfrs. Ass’n v. Sorrell, No. 14-0117 (D. Vt., notice of appeal filed May 6, 2015). While the motion for a preliminary injunction failed, the court allowed the case to proceed. Additional information about the injunction denial appears in Issue 563 of this Update. Issue 564
Skinnygirl Cocktails, LLC and a consumer have filed a joint stipulation of dismissal in a lawsuit alleging that the company and its reality-TV star founder, Bethenny Frankel, mislabeled its Margarita cocktail as “natural” despite containing the preservative sodium benzoate. Langendorf v. Skinnygirl Cocktails, LLC, No. 11-7060 (N.D. Ill., joint stipulation of voluntary dismissal with prejudice filed May 5, 2015). The joint stipulation comes after the court refused to certify the class in October 2014, finding that the plaintiff failed to show that the class was ascertainable and that the plaintiff was not a suitable representative for the class due to a personal relationship with her counsel. The stipulation does not indicate whether the parties reached a settlement. Additional information about the denial of class certification appears in Issue 544 of this Update. Issue 564
A Florida federal court has dismissed a lawsuit alleging that Beam Suntory Inc. and Maker’s Mark Distillery falsely label their Maker’s Mark® bourbon as “handmade” because they manufacture the product using a mechanized process. Salters v. Beam Suntory, Inc., No. 14-659 (N.D. Fla., order entered May 1, 2015). The plaintiffs “have been unable to articulate a consistent, plausible explanation of what they understood ‘handmade’ to mean in this context. This is understandable; nobody could believe a bourbon marketed this widely at this volume is made entirely or predominantly by hand,” the court said. The court first found that the process of making Maker’s Mark® bourbon is handmade in the original sense of the word because it is “distinguished from the work of nature,” according to the Oxford English Dictionary definition. “In that sense all bourbon is handmade; bourbon, unlike coffee or orange juice, cannot be grown in the wild.” The court…
