A federal court in New Jersey has, on the basis of the primary jurisdiction doctrine, halted proceedings alleging that General Mills misleads consumers by labeling its Kix® cereals with bioengineered corn as “made with all natural corn.” In re General Mills, Inc. Kix Cereal Litig., No. 12-249 (D.N.J., order entered November 1, 2013). Citing rulings from California and Colorado referring the matter to the U.S. Food and Drug Administration (FDA) for resolution, the court stated that “the issue of whether products may be labeled ‘Natural’ when they are made with bioengineered forms of corn falls within the expertise of the FDA and deference to the FDA’s regulatory authority is appropriate here.” Information about the Colorado litigation appears in Issue 492 of this Update. The court “administratively terminated” (i) the action “until such time as the FDA responds to this referral” or the referrals in the two other cases, and (ii) the…
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Washington state voters have reportedly rejected a ballot initiative that would have required front-of-package labeling for genetically modified (GM) food products, seeds and other agricultural commodities. According to the Washington Secretary of State, 53 percent of voters ultimately opposed the initiative, which was hotly contested by consumer advocates, food companies, physicians, and farmers in the months preceding the November 5, 2013, general election. Opponents of the initiative argued that GMO labeling would not only increase household food prices by as much as $400 per year, but would expose small farmers to “shake-down, bounty hunter law suits” as well as burdensome regulations. “This is a clear victory for Washington consumers, taxpayers and family farmers across our state,” said “No on 522” campaign spokesperson Dana Bieber in a November 5 statement. “Washington voters have soundly rejected this badly written and deceptive initiative.” Meanwhile, major grocery retailers purportedly plan to continue their efforts…
Speaking during a North American Meat Association conference in Chicago, Canada Agriculture Minister Gerry Ritz reportedly called on the United States to resolve a dispute over country-of-origin labeling (COOL) requirements for pork and beef by including provisions in the Farm Bill currently under consideration in the U.S. Congress. Ritz claimed that the rules, now before a World Trade Organization (WTO) compliance panel to decide whether provisions found in violation of WTO obligations now conform since they were revised, have cost Canada more than $1 billion annually. He also indicated that Canada has already prepared a list of retaliatory measures it will take if WTO rules in its favor. National Farmers Union President Roger Johnson reportedly bristled at the minister’s remarks, saying “Recent threats by the Canadian Agriculture Minister are unjustified and out of line. As a sovereign nation, we should not take direction from Canada. They do not dictate what…
The U.S. Department of Agriculture’s Food Safety and Inspection Services (FSIS) has issued a final rule amending the meat and poultry products inspection regulations “to expand the circumstances in which FSIS will generically approve the labels of meat and poultry products.” Effective January 6, 2014, the final rule will also consolidate the regulations governing meat and poultry product label approvals under a new Code of Federal Regulations part. Under the new regulations, FSIS will still require establishments to submit for evaluation certain types of labeling, “e.g., labels for temporary approval, labels for products produced under religious exemption, labels for products for export with labeling deviations, and labels with claims and special statements.” In particular, FSIS will continue to review the following special statements and claims: (i) “[c]laims relating a product’s nutrient content to a health or a disease condition”; (ii) “statements that identify a product as ‘organic’ or containing organic…
The U.S. Food and Drug Administration (FDA) has issued a request for comments regarding a proposed information collection about food labeling regulations. According to FDA, current approval periods for information collection requests regarding (i) third-party disclosure burdens about the amount of trans fatty acids present in a food, and (ii) voluntary declarations of the quantitative amount and the percent of Daily Value of a dietary ingredient on a “per day” basis in addition to the required “per serving” basis, have expired. To remedy the oversight, to most appropriately streamline these information collections, and to eliminate redundancy in its information collection requests, FDA seeks to revise the collection to “include these third party disclosure elements and have included them in the burden estimates and discussion.” Comments will be accepted until December 31, 2013. See Federal Register, November 1, 2013.
For the second time in a month, attorneys with three Florida law firms have filed litigation on behalf of state consumers alleging that Anheuser-Busch Cos. (AB) sells a formerly imported beer “in a way that misleads consumers into believing that Kirin beer is still made in and imported from Japan, and accordingly sell[s] Kirin beer at prices substantially higher than those of domestic beer.” Suarez v. Anheuser Busch Cos., LLC, No. ___ (Fla. Cir. Ct., Miami-Dade Cty., filed October 25, 2013). Information about the Beck’s beer litigation, asserting virtually identical claims on behalf of a putative nationwide class against AB in federal court, appears in Issue 500 of this Update. Brought in the names of just two consumers, the Kirin beer litigation notes that external, six-pack, bottled beer packaging fails to state that the product “is brewed in the U.S.A. with domestic ingredients. In fact, the packaging for Kirin Beer…
A federal court in California has significantly narrowed the consumer-fraud claims that may be asserted against Frito-Lay involving a number of its snack products labeled as “All Natural,” “0 Grams Trans Fat” and “No MSG.” Wilson v. Frito-Lay N. Am., Inc., No. 12-1586 (N.D. Cal., order entered October 24, 2013). All claims dismissed were with prejudice. The court dismissed claims based on products the plaintiffs did not purchase, because they failed to specify how or whether the 85 products added in their second amended complaint were substantially similar to the purchased products. The court also dismissed any claims based on statements the company made on its website. According to the court, the Food and Drug Administration (FDA) may have warned other companies about whether their Websites constituted labeling, but it had not done so as to the defendant’s products. The court also said, “The website address appears below Defendant’s physical address,…
A California resident has filed a putative nationwide class action against Lifeway Foods, Inc., alleging that many of its kefir, lassi and frozen yogurt products are misbranded under federal law and the state’s Sherman Law because they list as ingredients “Evaporated Cane Juice” or “Organic Cane Juice,” terms that purportedly render the products illegal. Figy v. Lifeway Foods, Inc., No. 13-4828 (N.D. Cal., San Francisco Div., filed October 17, 2013). The plaintiff avers that he and the class purchased these illegal products at a premium price and have sustained economic damages under the unlawful business acts and practices law. According to the complaint, the “unlawful sale of an illegal product is the only element necessary for the UCL claim. No reliance is necessary.” The plaintiff requests restitution, injunctive relief, corrective action, attorney’s fees, costs, and interest.
New York and California residents have filed a putative nationwide class action against Hain Celestial Group, Inc., alleging that its fruit and vegetable juice products, labeled as “Unpasteurized” and “100% Raw” are false and misleading because the products undergo high pressure processing, “which neutralizes the benefits of the live enzymes, probiotics, vitamins, proteins, and nutrients that would otherwise be retained in a raw and unpasteurized juice.” Stark v. Hain Celestial Group, Inc., No. 13-7246 (S.D.N.Y., filed October 15, 2013). The plaintiffs claim that they purchased a variety of these juices—“Red Juice,” “Gold Juice,” “Green Juice,” “Yellow Juice,” and “White Juice”—at a price premium, relying on representations that the products were, as labeled, able to deliver the nutritional benefits associated with a raw-food diet. According to the plaintiffs, raw juice products have, at best, a 5-day shelf-life, while the defendants’ products have a 30-day shelf-life, which is possible only with processing…
A federal court in California has denied the request of General Mills, Inc. to stay the proceedings in three putative class actions alleging that it misleads consumers by promoting various products as “100% Natural” given ingredients that are genetically modified or highly processed, such as high-fructose corn syrup, high-maltose corn syrup and maltodextrin. Rojas v. General Mills, Inc., No. 12-5099 (N.D. Cal., order entered October 9, 2013); Bohac v. General Mills, Inc., No. 12-5280, and Janney v. General Mills, Inc., No. 12-3919 (N.D. Cal., orders entered October 10, 2013). So ruling, the court rejected the defendant’s request that it apply the primary jurisdiction doctrine, finding that (i) the issue of whether a reasonable consumer would be misled by the company’s product promotions was within the court’s purview, and (ii) it did not appear the U.S. Food and Drug Administration was inclined to decide anytime soon what the term “natural” encompasses. In Rojas,…
