Shook, Hardy & Bacon Agribusiness & Food Safety attorneys Ann Havelka and Jeff Lingwall provided an analysis of putative class action labeling claims against Salov North America and its Filippo Berio® brand of olive oil in a February 20, 2015, article for Law360. Kumar v. Salov North America Corp., No. 4:14_CV-02411 (N.D. Cal. Feb. 3, 2015). The plaintiff in the case alleges that Salov’s Filippo Berio® oil is deceptively labeled as “Imported from Italy,” and that independent product tests on the “Extra Virgin” varieties indicate that they are of less-than-extra-virgin quality. According to Havelka and Lingwall, these ongoing olive oil proceedings offer food manufacturers “a cautionary example, both for traditional labeling issues and for the trend toward litigation based on product testing,” making it all the more important for companies to be “prepared with their own test results, documented production standards and quality-control protocols” to ensure that all labeling claims…
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U.S. Sens. Barbara Boxer (D-Calif.), Richard Blumenthal (D-Conn.) and Rep. Peter DeFazio (D-Ore.) have reintroduced a proposed bill that would require the Food and Drug Administration to initiate labeling rules for foods that contain genetically engineered (GE) ingredients. “Some in the food and chemical industry say adding this very small piece of information to food labels will confuse people, will alarm people,” Boxer said. “Well, that argument is a familiar one. It’s been raised by almost every single industry when they want to avoid giving consumers basic facts about the product they’re buying.” The Genetically Engineered Food Right-to-Know Act reportedly has wide-ranging support from more than 120 public health, consumer and environmental organizations. The congressional lawmakers introduced similar legislation in the 113th Congress. See The Hill and Press Release of Congressman Peter DeFazio, February 12, 2015. Issue 555
A Florida federal court has denied the state’s motion to dismiss a First Amendment lawsuit challenging regulations that require products labeled as “skim milk” to contain the same amount of vitamin A as whole milk. Ocheesee Creamery, LLC v. Putnam, No. 14-621 (N.D. Fla., order entered February 7, 2015). Because the process of skimming cream from milk removes much of the vitamin A content, the regulation requires skim milk to contain added vitamin A to bear the “skim milk” label; otherwise, it must be labeled as “imitation milk product.” Ocheesee Creamery’s November 2014 complaint claimed that by refusing to allow the company to sell its pasteurized skim milk with a “skim milk” label unless it added vitamin A—which the creamery views as tainting its “all-natural” products—Florida is censoring its use of the phrase “skim milk.” In its motion to dismiss, the state argued that the creamery had no standing and failed…
A California federal court has dismissed two claims and allowed four to continue in a putative class action alleging that (i) Salov North America Corp. mislabeled its Filippo Berio olive oils as “Imported from Italy” despite using olives grown and pressed in other countries and (ii) its extra virgin olive oils do not meet the high standards required to qualify as “extra virgin,” partly due to inefficient bottling and transportation. Kumar v. Salov North Am. Corp., No. 14-2411 (N.D. Cal., order entered February 3, 2015). The court first assessed Salov’s challenge to the plaintiff’s standing and found that it could not, as a matter of law, determine that a reasonable consumer would not interpret “Imported from Italy” to mean that the product was made exclusively of Italian olives. Salov also asserted that the plaintiff must have seen the statement on the label that informed consumers that the product was “Packed…
An Arkansas federal court has dismissed with prejudice a putative class action alleging that Twinings North America, Inc. mislabeled its tea by including the statement that the product is a “natural source of antioxidants” on its packaging. Craig v. Twinings North Am., Inc., No. 14-5214 (W.D. Ark., order entered February 5, 2015). The plaintiff had argued that under the Arkansas Food, Drug, and Cosmetic Act (AFDCA), an act identical to the food labeling regulations of the U.S. Food and Drug Administration (FDA), Twinings’ tea failed to meet the nutrient level threshold—10 percent or more of the recommended daily intake—required for a claim about the nutrient content of a product. Twinings argued that the Arkansas law claims were preempted by the Federal Food, Drug, and Cosmetic Act (FDCA) and could impose liability inconsistent with federal law. To assess the preemption argument, the court considered whether the statement “natural source of antioxidants” is…
A group of consumers has filed a putative class action against Cytosport Inc., maker of Muscle Milk, alleging that its powdered and ready-to-drink protein supplements do not contain the ingredients and characteristics advertised on its packaging. Clay v. Cytosport Inc., 15-165 (S.D. Cal., filed January 23, 2015). The plaintiffs argue that independent scientific testing shows that Muscle Milk products contain substantially less protein than the amount represented in the Nutrition Facts panel. They also allege that Muscle Milk labels list L-glutamine amino acids separately from the protein content to falsely imply that the products have additional L-glutamine beyond the content inherent in the protein mix. The complaint further argues that Muscle Milk labels cannot feature the word “lean” because the product does not contain less fat than its competitors. Alleging deceptive advertising, misrepresentation and breach of warranties, the putative class seeks certification, damages, an injunction, and attorney’s fees. Issue…
A Missouri federal court has dismissed a lawsuit challenging the “all natural” labels of Cape Cod Chips because the plaintiff failed to provide a suitable definition of “natural.” Kelly v. Cape Cod Potato Chip Co., No. 14-119 (W.D. Mo., order entered January 27, 2015). The plaintiff alleged that 16 varieties of Cape Cod Chips were advertised as “all natural” and made without preservatives despite containing 13 artificial and synthetic ingredients. The court reviewed the definitions of “natural” submitted by the plaintiff and found them each lacking. It first dismissed the dictionary definition, “existing or produced by nature: not artificial,” as “not plausible because the Chips are processed foods, which of course do not exist or occur in nature.” The definition of “natural” found in an informal advisory opinion from the U.S. Food and Drug Administration (FDA) was not binding, the court found, because the agency “specifically declined to adopt any…
The U.S. Federal Trade Commission (FTC) is soliciting comments on proposed amendments to the Fair Packaging and Labeling Act (FPLA). The 1967 law requires that certain products carry labels with identifying information such as the source, content and quantity and specifically excludes—among other categories—meat products, poultry and alcohol beverages. FTC sought comments on the existing rules in March 2014 and used some of the suggested changes in the proposed amendments, which include (i) “modernizing the place-of-business listing requirement to incorporate online resources”; (ii) “eliminating obsolete references to commodities advertised using the terms ‘cents off,’ ‘introductory offer,’ and ‘economy size’”; and (iii) incorporating “a more comprehensive metric chart.” Comments must be received by March 30, 2015. See FTC News Release, January 22, 2015. Issue 552
Society Insurance has filed a lawsuit in Iowa federal court seeking a declaration that its policy does not require it to defend or indemnify Templeton Rye Spirits in a putative consumer class action alleging that the whiskey distiller falsely represented its products as made from a Prohibition-era recipe. Soc’y Ins. v. Templeton Rye Spirits LLC, No. 15-0005 (S.D. Iowa, filed January 5, 2015). The underlying lawsuit asserts that Templeton claims its whiskey is made in a “small batch” from a Prohibition-era recipe that was a favorite of Al Capone’s, but that the product is actually distilled at an MGP Ingredients, Inc. factory in accordance with a stock MGP recipe. Society seeks a judicial declaration that Templeton’s insurance policy, which Society argues covers only damages based on bodily injury, property damage or personal and advertising injury, will not require Society to indemnify a settlement or judgment against Templeton. The insurance company argues…
Anheuser-Busch Cos. has reportedly settled a consumer class action alleging that Kirin® beer is represented as a Japanese import even though the products sold in the United States are brewed with domestic ingredients in California and Virginia. Suarez v. Anheuser-Busch Cos., No. 2013-33620-CA-01 (Fla. Cir. Ct., 11th Jud. Cir., settlement preliminarily approved December 17, 2014). The October 2013 complaint alleges that Kirin’s labeling falsely implied that its products remained imported despite a 1996 agreement between the Japanese company and Anheuser-Busch to manufacture the beer in the United States and a 2006 deal that gave Anheuser-Busch the brand’s marketing and sales responsibilities. The complaint alleges that the packaging includes, in fine print, a statement clarifying that the beer is “[b]rewed under Kirin’s strict supervision by Anheuser-Busch, in Los Angeles, CA and Williamsburg, VA,” but that the statement is not visible to consumers before purchase. Under the proposed settlement agreement, consumers will…
