Four food, beverage and business trade organizations have filed a constitutionally based challenge to Vermont’s recently enacted law that would require food and beverage manufacturers to disclose on product labels that their products are “produced with genetic engineering” (GE), or “may be” or are “partially” so produced and to prohibit the use of terms such as “natural” in the labeling, signage and advertising of GE products. Grocery Mfrs. Ass’n v. Sorrell, No. 14-0117 (D. Vt., filed June 12, 2014). According to the complaint, it will be difficult or impossible to comply with the law’s July 1, 2016, effective date, because members must “revise hundreds of thousands of product packages,” “establish Vermont-only distribution channels” or “revise the labels for all of their products, no matter where they might be sold in the United States.” The plaintiffs claim that the law’s proscriptions “are beyond Vermont’s power to enact” by “compelling manufacturers to…
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A federal court in California has denied the motion to dismiss filed by The Hain Celestial Group in four consolidated putative class actions alleging that the company deceives consumers by labeling and promoting 10 of its Celestial Seasonings® teas as “100% Natural” when they contain chemical insecticides, fungicides and herbicides. Von Slomski v. The Hain Celestial Group, Inc., No. 13-1757 (C.D. Cal., order entered June 10, 2014). So ruling, the court disagreed that the plaintiffs failed to state a claim or lacked standing, or that the litigation should be dismissed under the primary jurisdiction doctrine. The company challenged the Eurofins test on which the plaintiffs rely to support their claim that the teas contain “significant levels” of man-made, chemical pesticides. According to the defendant, the plaintiffs failed to provide details about the testing, and the study “was published by ‘an admittedly biased short-seller that admits that it issued the report…
Friends of the Earth has released a May 2014 report titled “Tiny Ingredients Big Risks,” claiming that some popular food products contain unlabeled manufactured nanomaterials. Based on information obtained from the Woodrow Wilson International Center for Scholars Project on Emerging Nanotechnologies (PEN), the report identifies 94 food and beverage products—including almond milk, cereal, soy and dairy products, oils, and sports beverages—that purportedly contain nano-ingredients such as titanium dioxide, silver and “nano-sized self assembled structured liquids” known as micelles. According to the report, the number of products on this list has allegedly increased tenfold since the consumer group published its last report in 2008. “Friends of the Earth calls upon food companies and government regulators to stop this influx of nanofoods into the market, given the absence of regulations to ensure these novel products are safe for human health and the environment and labels to ensure consumer right to know,” opines…
A California federal court has certified a class of California consumers who allege that Blue Diamond Growers’ almond milk is mislabeled as “All Natural” and hides its added sugar content by listing “evaporated cane juice” (ECJ) on its label instead. Werdebaugh v. Blue Diamond Growers, No. 5:12-cv-2724 (N.D. Cal., order entered May 23, 2014). The court granted plaintiff Chris Werdebaugh’s motion for certification of the California class but rejected his request for nationwide certification because he had not shown that California had any interest that outweighed the interests of other states in determining their own policies. Werdebaugh argued that the “All Natural” label on Blue Diamond’s almond milk is misleading because the product contains chemical preservatives, synthetic chemicals and added artificial color, and the label also lists ECJ as an ingredient when sugar is the common name as required by the U.S. Food and Drug Administration (FDA). The court ruled…
A federal court in California has granted in part and denied in part the motion to dismiss in a putative class action alleging that Whole Foods Market Group misleads consumers by labeling certain food products containing sodium acid pyrophosphate (SAPP) as “All Natural.” Garrison v. Whole Foods Mkt. Group, Inc., No. 13-5222 (N.D. Cal., order entered June 2, 2014). Additional information about the complaint appears in Issue 504 of this Update. The court ruled that (i) the claims were not preempted under federal law; (ii) the primary jurisdiction doctrine did not apply (given the lack of a clear indication that the U.S. Food and Drug Administration intended to revisit its decision not to adopt formal regulations as to the meaning of “natural”); (iii) the plaintiffs sufficiently pleaded a cause of action (with the exception of allegations pertaining to marketing in various media and advertising—these claims were dismissed with leave to amend);…
A federal court in California has certified a nationwide class of consumers as to the injunctive relief requested in litigation against Dole Packaged Foods regarding its labeling claims that certain fruit products are “All Natural” despite the presence of ascorbic acid and citric acid, but limited the damages class to California consumers and the number of products at issue. Brazil v. Dole Packaged Foods, LLC, No. 12-1831 (U.S. Dist. Ct., N.D. Cal., San Jose Div., order entered may 30, 2014). Dismissed with prejudice were Dole products and label statements in the second amended complaint for which the named plaintiff did not move for class certification. An earlier ruling narrowing the claims is discussed in Issue 498 of this Update. Among other matters, the court disagreed with Dole’s argument that the class could not be ascertained because company records identifying purchasers or the products they purchased do not exist and further…
A California federal court has dismissed a putative class action against Diamond Foods Inc. alleging that its Kettle tortilla chips are mislabeled as “All Natural” despite containing synthetic ingredients. Surzyn v. Diamond Foods Inc., No. 14-cv-136 (N.D. Cal., order entered May 28, 2014). Citing a lack of basic factual assertions such as which product was the subject of the lawsuit, the court granted plaintiff Dominika Surzyn leave to amend within 21 days. Diamond Foods argued that its “All Natural” label is not misleading within the context of the rest of the packaging, which lists some of the ingredients—maltodextrin and dextrose—at issue in the case, and cited a Federal Trade Commission (FTC) determination that consumers’ understanding of “natural” is context-specific. The court rejected Diamond Foods’ assertions, finding that FTC had reached its conclusion not to dismiss any meaning and implication of the world “natural” but to decline to offer guidance on the…
A California bill requiring labels to disclose genetically modified (GM) ingredients in food recently failed to pass after a close vote in the state senate. Opponents argued that it would cost the average consumer as much as $400 per year for labeling a category of food that presents no risk to the public. Vermont became the first state to enact a GM ingredient-labeling law in May 2014. Additional information about that statute appears in Issue 521 of this Update. See Reuters, May 29, 2014.
The California Senate has passed a bill (S.B. 1000) that would require all sugar-sweetened beverages (SSBs) containing more than 75 calories per 12-ounce serving to carry labels warning of obesity, diabetes and tooth decay. Milk-based beverages and 100 percent fruit and vegetable juices would be exempt. Introduced in February 2014 by state Sen. Bill Monning (D-Carmel) and co-sponsored by the California Center for Public Health Advocacy, the “Sugar-Sweetened Beverages Safety Warning Act,” is backed by the California Medical Association, Latino Coalition for a Healthy California and California Black Health Network. Noting “overwhelming evidence” linking obesity and the consumption of sweetened beverages,” and claiming that SSBs are the “single largest source of added sugars in the American diet,” the bill specifically seeks to “protect consumers and promote informed purchasing decisions . . . about the harmful health effects that result from the consumption of drinks with added sugars.” If passed by…
The European Food Safety Authority (EFSA) has launched a public consultation on a draft scientific opinion evaluating “allergenic foods and food ingredients for labeling purposes.” Prepared by EFSA’s Panel on Dietetic Products, Nutrition and Allergies (NDA), the new draft updates previous scientific opinions “relative to food ingredients or substances with known allergenic potential listed in Annex IIIa of 2003/89/EC,” including cereals containing gluten, milk and dairy products, eggs, nuts, peanuts, soy, fish, crustaceans, mollusks, celery, lupin, sesame, mustard, and sulfites. To this end, NDA addresses the following topics: (i) “the prevalence of food allergies in unselected populations”; (ii) “proteins identified as food allergens”; (iii) “cross-reactivities”; (iv) “the effects of food processing on allergenicity of foods and ingredients”; (v) “methods for the detection of allergens and allergenic foods”; (vi) “doses observed to trigger adverse reactions in sensitive individuals”; and (vii) “approaches used to derive individual and population thresholds for selected allergenic…
