The U.S. Food and Drug Administration (FDA) has proposed revisions to the Nutrition Facts label that would emphasize the number of calories and servings per container, among other things. As the agency explained in a February 27, 2014, press release, the new panels would not only display calories per serving in larger, bolder type, but would update serving sizes to reflect “the reality of what people actually eat, according to recent food consumption data.” In addition to breaking out the amount of added sugar as a separate item, the labels would make “the number of servings per package . . . more prominent,” with “amount per serving” tied to the actual serving size, e.g., “Amount per cup.” FDA has also recommended updating the daily values for various nutrients, listing potassium and vitamin D amounts on the label, and removing “calories from fat” completely. “Obesity, heart disease and other chronic diseases…
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Public health watchdog the Center for Science in the Public Interest (CSPI) has announced a February 26, 2014, meeting at the National Press Club in Washington, D.C., to discuss ways of improving the next generation of nutrition facts labels. NPR News correspondent Allison Aubrey is slated to moderate the panel with participants CSPI Executive Director Michael Jacobson; Wegmans Food Market Corporate Nutrition Manager Jane Andrews; The NPD Group’s Food & Beverage Industry Analyst Darren Seifer; Greenfield-Belser Principal Burkey Belser; and Share our Strength Director of National Partnerships Chef Gregory Silverman. See CSPI News Release, February 18, 2014. Issue 514
Associate Law Professor Diana Winters argues in “The Magical Thinking of Food Labeling: The NLEA as a Failed Statute” that those parts of the Nutrition Labeling and Education Act of 1990 (NLEA) regulating “health claims” and “nutrient content claims” have been ineffective at addressing obesity and should be repealed. While Winters acknowledges that leaving this aspect of food labeling to the states will result in an increase in litigation, because the current litigation environment is dominated by time-consuming, complex arguments over non-substantive issues, such as preemption and the primary jurisdiction doctrine, the best way to improve front-of-package labeling is to allow state courts to focus on the substance of deceptive claims. Among other matters, the author notes that attitudes about food consumption “vary wildly from state to state,” thus justifying differing state and local laws in the field of food labeling. She also observes, “By crafting laws tailored to targeted…
A federal court in California has denied the plaintiff’s request to certify a class of those who purchased ZonePerfect Nutrition bars relying on allegedly deceptive labels representing the products as “All Natural.” Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907 (N.D. Cal., order entered February 13, 2014). The court found that the plaintiff set forth sufficient evidence to establish that she had standing for the purpose of class certification, despite paying more for other nutrition bars and sometimes purchasing non-natural products. Because the defendant “overwhelmingly sells to retailers, not directly to consumers, and . . . there are no records identifying any but a small fraction of consumers who have purchased ZonePerfect bars in the last several years,” the court, however, agreed with the defendant that neither the class nor the quantity of nutrition bars each member purchased were ascertainable other than by affidavit. As to ascertainability, the court noted a…
A federal court in California has dismissed with prejudice the third amended complaint filed by named plaintiffs on behalf of a putative class of purchasers of Chobani Greek Yogurt products, alleging violations of state consumer protection laws because the products were mislabeled under federal law by listing evaporated cane juice (ECJ), instead of sugar, as an ingredient and stating that the yogurts contain only natural ingredients, when they actually contain fruit and vegetable juice—purportedly “highly processed unnatural substances”—as well as turmeric for color. Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal., decided February 20, 2014). The court agreed with Chobani that the plaintiffs failed to sufficiently allege reliance or to plead fraud with sufficient particularity and thus lacked standing to pursue their claims under California’s Unfair Competition Law (UCL), False Advertising Law and Consumers Legal Remedies Act. Apparently annoyed that the plaintiffs had been given numerous opportunities to cure pleading…
California State Senator Bill Monning (D-Carmel) has introduced legislation (SB 1000) that would require all sugar-sweetened beverages (SSBs) containing more than 75 calories per 12-ounce serving to carry safety warnings. Co-sponsored by the California Center for Public Health Advocacy, the Sugar-Sweetened Beverage Safety Warning Act would direct manufacturers, distributors and retailers to place the following notice on sealed containers, multipacks and vending machines, as well as any premises where SSBs are sold in unsealed containers: “STATE OF CALIFORNIA SAFETY WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.” The bill would also mandate the two-year retention of business records pertaining to the distribution, purchase or sale of SSBs as part of a statewide effort “to determine the quantity and type of sugar-sweetened beverages distributed, purchased or sold.” “When the science is this conclusive, the State of California has a responsibility to take steps to protect consumers,”…
A number of U.S. House of Representatives members have written to Food and Drug Administration (FDA) Commissioner Margaret Hamburg to express concern over proposed regulations that would implement the Affordable Care Act’s requirements pertaining to the nutrition labeling of standard menu items at chain restaurants. In their February 14, 2014, letter, they claim that FDA’s April 2011 proposal “goes well beyond [the law’s] intent and unnecessarily captures small business owners who are already complying with the Nutrition Labeling and Education Act. Specifically, the proposed rule limits the ability of businesses to determine for themselves how best to provide nutritional information to its (sic) customers, particularly those establishments that offer made to order items or primarily service customers outside the restaurant, such as delivery operations.” They urge Hamburg to incorporate instead the alternatives outlined in H.R. 1249, which has not been referred out of committee since its introduction in March 2013.…
A California resident has filed a putative nationwide class action against Suja Life, LLC, alleging that the company, which advertises and labels its juice products as “raw” and “cold-pressed,” misleads consumers because it uses a high pressure processing (HPP) treatment that alters the nutrients and live enzymes that raw-product purchasers wish to consume. Heikkila v. Suja Life, LLC, No. 14-0556 (N.D. Cal., filed February 5, 2014). Claiming that HPP’s effects on juice products are “identical to those of traditional pasteurization—inactivated enzymes, inactivated probiotics, altered physical properties of the product, and denatured proteins, among other undesirable qualities,” the plaintiff alleges that the products “are nothing more than run-of-the-mill, processed juices.” According to the complaint, the plaintiff reviewed the company’s Website, packaging and labeling before making her purchase and paid a premium price for the products. She contends that raw juices have a short shelf life and are thus more expensive than…
A federal court in California has denied the motion to dismiss filed by guacamole maker Yucatan Foods, L.P. in a putative class action alleging violations of labeling laws based on the company’s use of “evaporated cane juice” instead of “sugar” on product labels. Swearingen v. Yucatan Foods, L.P., No. 13-3544 (N.D. Cal., order entered February 7, 2014). So ruling, the court rejected Yucatan’s arguments that (i) the “home state” exception of the Class Action Fairness Act should apply and divest the federal court of jurisdiction because a nationwide class of consumers cannot be certified given that California law cannot regulate conduct unconnected to the state—the court found that resolution of this issue was not appropriate at the pleadings stage; (ii) federal law preempts the plaintiffs’ state law-based claims—the court determined that the claims rise and fall on the defendant’s compliance with federal law, thus the requirements the plaintiffs seek to…
The U.S. Department of the Treasury’s Alcohol and Tobacco Tax and Trade Bureau (TTB) has issued a revised interim policy on gluten content statements permitted in wine, distilled spirits and malt beverage labeling and advertising. TTB took the action after reviewing the U.S. Food and Drug Administration’s (FDA’s) final rule on the use of “gluten-free” on labels for products within that agency’s jurisdiction with the goal of making its approach “as consistent as possible with the regulations that FDA issued.” Thus, TTB Ruling 2014-2 supersedes TTB Ruling 2012-2; it remains an interim ruling, however, until “FDA issues a final rule or other guidance with respect to fermented and hydrolyzed products.” Under TTB’s revised interim policy, “the term ‘gluten-free’ may be used on labels and in advertisements if the product would be entitled to make a gluten-free label claim under the standards set forth in the new FDA regulations at 21…
