A federal court in California has dismissed for lack of standing a putative class action alleging that Pacific Foods of Oregon, Inc. misleads consumers by using the term “evaporated cane juice” (ECJ) on its food labels instead of sugar. Swearingen v. Pac. Foods of Ore., Inc., No. 13-4157 (N.D. Cal., order entered July 30, 2014). Plaintiffs Mary Swearingen and Robert Figy are named plaintiffs in a number of ECJ-related cases that have recently been stayed under the primary jurisdiction doctrine as the U.S. Food and Drug Administration considers its position on use of the term by food makers. Two such cases are summarized in Issue 529 of this Update. The court did not address this issue here, because it dismissed the case on pleading grounds. According to the court, the plaintiffs did not allege that they purchased the company’s products “in reliance on any alleged misrepresentations that evaporated cane juice is…
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In consolidated actions pending since 2010, a federal court in California has entered a final order approving a class-action settlement that will require Quaker Oats Co. to remove partially hydrogenated oils (PHOs) from some of its oatmeal products and cease making the statement “contains a dietarily insignificant amount of trans fat” on any product label where the product still contains more than 0.2 grams of artificial trans fat per serving. In re Quaker Oats Labeling Litig., No. 10-0502 (U.S. Dist. Ct., N.D. Cal., San Jose Div., order entered July 29, 2014). Details about a court ruling trimming the plaintiffs’ claims that the company falsely advertised products with PHOs as healthy appear in Issue 433 of this Update. According to the court’s order awarding $760,000 to class counsel in attorney’s fees and costs, the suit and settlement conferred “a significant benefit . . . on the general public” given the product…
In a 9-2 en banc decision, the District of Columbia Circuit has affirmed an earlier panel decision that the U.S. Department of Agriculture (USDA) can require meat producers to include country-of-origin labeling (COOL) on their packaging. Am. Meat. Inst. v. USDA, No. 13-5281 (D.C. Cir., order entered July 29, 2014). The First Amendment allows for such required disclosures because the government’s interest is sufficient, the court found. Additional information on the American Meat Institute’s constitutional challenge and the D.C. panel’s decision appears in Issues 518 and 520 of this Update. In its discussion, the court interpreted the U.S. Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) to reach beyond mandated commercial labeling necessary to correct deception to include the “factual and uncontroversial disclosures required to serve other government interests” at issue in the COOL context. The language in Zauderer “sweeps far more broadly than…
The Federal Trade Commission (FTC) has approved a modified final order in proceedings against Phusion Projects, LLC, which markets the malt beverage Four Loko, to account for the Department of Treasury’s Alcohol and Tobacco Tax and Trade Bureau’s (TTB’s) denial of proposed changes to the company’s product labels. In re Phusion Projects, LLC, No. C-4382 (FTC, order entered July 24, 2014). Additional information about FTC’s January 2014 order and agreement with the company appears in Issue 471 of this Update. FTC alleged that Phusion and its principals “falsely claimed that a 23.5-ounce, 11 or 12 percent alcohol by volume can of Four Loko contains alcohol equivalent to one or two regular 12-ounce beers, and that a consumer could drink one can safely in its entirety on a single occasion.” The modified final order acknowledges the company’s attempt to comply with the January agreement by seeking TTB’s approval to display an…
The Center for Science and Democracy at the Union of Concerned Scientists has submitted a comment backed by more than 280 health experts asking the U.S. Food and Drug Administration (FDA) to include a percent daily value for the proposed “added sugars” declaration on food and beverage labeling. Responding to the agency’s request for comments on proposed changes to the nutrition and supplement facts labels, the letter signed by Robert Lustig, Marion Nestle and members of the Healthy Food Action network urges FDA to set a maximum daily value for added sugars at 50 grams—approximately 10 percent of recommended daily calorie intake—and to list a percent daily value on the Nutrition Facts label. “Many food and beverage manufacturers add excessive amounts of sugar to their products, including those that they market as healthy options. In our current food environment, many people are unknowingly and unavoidably consuming excess sugar,” opines the…
According to a putative class action removed to Arkansas federal court, Whole Foods mislabels several of its 365 Everyday Value brand products as “organic” or “all natural” despite containing synthetic ingredients. Stafford v. Whole Foods Market Cal., No. 14-420 (E.D. Ark., removed July 22, 2014). Originally filed in Arkansas state court in June, the complaint accuses several products of mislabeling—for example, the plaintiff says, the 365 Everyday Value soft drink contains carbon dioxide, citric acid, tartaric acid, and caramel coloring despite its “all natural” label. Whole Foods argued to the state court that the potential class contains more than 100 people who seek over $5 million in damages, so the case was removed to federal court. Alleging that Whole Foods violated Arkansas labeling laws and breached warranties, the plaintiff seeks class certification, damages and interest. A similar case filed in New Jersey state court alleges that Breyers, a subsidiary of Unilever…
A California federal court has dismissed fraud claims against R.C. Bigelow in a putative class action accusing the company of advertising that its tea “delivers healthful antioxidants” when the levels of antioxidants are too low to benefit the consumer. Victor v. R.C. Bigelow, No. 13-2976 (N.D. Cal., order entered July 18, 2014). The court allowed to proceed the plaintiff’s claim that Bigelow’s antioxidants assertion on its packaging violated California’s Unfair Competition Law (UCL) based on the “unlawful” prong, but it dismissed with prejudice his claims that Bigelow had violated the “fraud” prong of the UCL. Despite arguing the importance of the word “deliver,” the plaintiff failed to prove that the phrase “delivers healthy antioxidants” represented that the product contained a high enough level of antioxidants to provide health benefits to the tea drinker; as the court had previously allowed the plaintiff to amend his complaint, the claims relating to fraudulent…
Health Canada has proposed nutrition labeling changes as part of an ongoing effort to make food and beverage labels easier for consumers to read. Based on a public consultation, the conclusions of Canadian Food Inspection Agency’s Food Labelling Modernization Initiative and a technical review of current labels, the amendments would revise the Nutrition Facts table, ingredient list and suggested Daily Values to take into account “the most up to date scientific information and consumption habits.” In particular, the proposed changes would (i) adjust serving sizes to reflect “the amounts of food that Canadians actually eat in one sitting,” (ii) update the Daily Values and nutrients displayed in the Nutrition Facts table; (iii) refresh the appearance of the Nutrition Facts table and ingredient list to emphasize calories, added sugars and other nutrients of concern to Canadian consumers, and (iv) create “an optional information box highlighting the presence of certain bioactive components,…
The European Union (EU) and the Southern African Development Community (SADC)—Botswana, Lesotho, Mozambique, Namibia, South Africa, and Swaziland—have agreed to protect each other’s geographical indication (GI) names on agricultural products. The EU lists 251 GIs it seeks to protect for a variety of products, focusing especially on dairy products like cheese, while South Africa’s 105 GIs are primarily wine-related. As a result of the agreement, the countries will allow the labeling of a product as the GI only if it originated from a designated area, but they will respect previously registered trademarks. “[GIs] are a key tool to protect the know-how of farmers and develop added value in quality agricultural products,” said EU Agricultural Commissioner Dacian Ciolos. See Law360, July 22, 2014. Issue 531
Former U.S. Food and Drug Administration Commissioner David Kessler has authored a perspective article in the July 17, 2014, issue of The New England Journal of Medicine, arguing that the agency’s proposed revisions to the Nutrition Facts panel “don’t go far enough.” While praising the first amendments to the panel since its launch in 1997, the article claims that the proposed changes not only stop short of specifying a Daily Value for added sugar but fail to consider a product’s overall nutritional value. Additional details about FDA’s proposed labeling revisions appear in Issue 515 of this Update. “There is nothing in the new framework that actively encourages consumers to purchase food rich in the fruits, vegetables, and whole grains that are rightfully considered ‘real food,’” explains Kessler. “Instead, the focus is on specific nutrients—an emphasis that gives food companies an incentive to fortify their products so they can make claims such…
