A federal court in California has dismissed some of the putative class claims filed against Twining North America, Inc., alleging that the company misled consumers by labeling its green tea products as a “natural source of antioxidants.” Lanovaz v. Twinings N. Am., Inc., No. 12-2646 (N.D. Cal., order entered February 25, 2013). Stricken with leave to amend are claims based on labels or products other than green tea because the named plaintiff alleged that she purchased green tea only. The court disagreed with the defendant that the state law-based claims were preempted, finding that by stating its tea is a “natural source of antioxidants,” the defendant made a nutrient content claim regulated by the Food and Drug Administration (FDA) and that the plaintiff was seeking to enforce state law identical to federal requirements. So ruling, the court cited an FDA warning letter sent to the company over its alleged “nutrient content…
Tag Archives labeling
In a 7–2 vote, lawmakers in Colorado have rejected a bill (H.B.1192) that would have defined “genetically engineered” and required a person selling, distributing or offering food for sale in Colorado to identify genetically engineered (GE) food with the following label: “This product contains genetically engineered material or was produced with genetically engineered material.” The bill was sponsored by Rep. Jeanne Labuda (D-Denver), who, according to a news source, says that consumers deserve to know more about how their food is produced and argues that food producers already have to label foods containing certain additives or allergens. Opponents of the bill, including many farmers and food retailers, reportedly claim that requiring labels for GE foods would significantly affect family farmers and increase the cost of food for all Colorado citizens. “Much of the dialogue surrounding this topic seems to be filled with fear and innuendo, as opposed to being well researched,…
The Mississippi House of Representatives recently passed legislation (H.B. 1182) that aims to prohibit food regulation at the local level. The bill in question would reserve to the state legislature the power to regulate consumer incentive items, implement menu and vending machine labeling rules, and set other restrictions on the sale of certain foods and beverages where not preempted by federal law. “If you want to go eat 20 Big Macs, you can eat 20 Big Macs,” said Rep. Greg Holloway (D-Hazlehurst), who reportedly argued that the bill would bar municipalities from making their own laws “willy-nilly.” The state Senate has also passed a similar measure (S.B. 2687), which must be reconciled with the House version before proceeding to the governor. See The Associated Press, February 14, 2013.
The Food and Drug Administration (FDA) recently entered a consent decree with Puerto Rico-based Jonlly Fruits, Inc. requiring the company to hire independent experts in labeling, sanitation and Hazard Analysis Critical Control Point (HACCP) before it can begin again to make and sell its fruit and juice products. United States v. Jonlly Fruits, Inc., No. 13-1043 (D.P.R., approved January 17, 2013). The labeling expert is required to “review Defendants’ labeling and ensure that all such labels are in compliance with the applicable FDA regulations.” The other experts are required to develop written protocols and employee training programs and to conduct comprehensive facility inspections. In the meantime, the company has agreed to destroy “all in-process and finished articles of food” currently in its custody, control or possession. According to FDA, the company and its president, Bartolo Pérez Romàn, “have a long history” of failing to comply with current good manufacturing practice…
Evidently in response to public comments, the Federal Trade Commission (FTC) has modified its agreement with Phusion Projects, LLC to require an alcohol facts panel on certain-sized cans of its Four Loko fruit-flavored malt beverage. In re Phusion Projects, LLC, No. C-4382 (FTC, order entered February 6, 2013). The agreement resolves charges that the company and its principals falsely claimed that a 23.5-ounce can contained “the alcohol equivalent of one or two regular 12-ounce beers, and that a consumer could drink one entire can safely on a single occasion.” To the contrary, according to FTC’s administrative complaint, the products contain the alcohol equivalent of four to five 12-ounce cans of beer. Without admitting liability, the company has agreed to label any container of Four Loko or other flavored malt beverage with more than two servings of alcohol with an alcohol facts panel. The panel will set forth the “the container…
The North American Olive Oil Association has brought an unfair competition and false advertising action against The Gourmet Factory claiming that it sells its Capatriti® brand as “100% Pure Olive Oil” when it is actually made from “leftover olive skins and pits using a combination of chemical solvents and high temperatures.” N. Am. Olive Oil Ass’n v. Kangadis Food Inc., d/b/a The Gourmet Factory, No. 113-868 (S.D.N.Y., filed February 6, 2013). The process apparently creates a byproduct referred to as “pomace,” and the complaint alleges that products containing pomace may not be marketed and labeled as olive oil under “an array of olive-oil making conventions, standard industry practices, international regulations, and federal and state laws.” The association allegedly purchased tins of the defendant’s product from store shelves in New York and New Jersey and shipped them to an expert in Italy for testing, which purportedly confirmed the presence of chemicals and…
A federal court in Wisconsin has dismissed as preempted a putative class action alleging that the company which makes Sue Bee Clover Honey® violates a state honey-labeling standard by failing to disclose that the product does not contain bee pollen. Regan v. Sioux Honey Ass’n Coop., No. 12-758 (E.D. Wis., decided January 31, 2013). The court also dismissed an unjust enrichment claim and a cause of action based on an alleged violation of the Food, Drug, and Cosmetic Act (FDCA). According to the court, the Wisconsin honey standard is based on a Codex Alimentarius provision that prohibits the removal of pollen from honey “except where this is unavoidable in the removal of foreign inorganic or organic matter.” Because federal law has no standard of identity for honey, under the Nutrition Labeling and Education Act (NLEA), the label must therefore bear the “common or usual name” of a food contained therein. The…
The U.S. Department of Agriculture’s Food Safety and Inspection Service and the Food and Drug Administration (FDA) have announced an April 17, 2013, public meeting in Washington, D.C., to provide information and receive public comments on agenda items and draft U.S. positions for discussion during the 41st Session of the Codex Committee on Food Labeling of the Codex Alimentarius Commission in Charlottetown, Prince Edward Island, Canada, on May 14–17. Agenda items include (i) implementation of the World Health Organization global strategy on diet, physical activity and health, including a proposed draft revision of the “Guidelines on Nutrition and Health Claims concerning Non-Addition of Sodium Salts”; (ii) guidelines for the production, processing, labeling, and marketing of organically produced foods, including use of ethylene as a sprouting inhibitor for onions and potatoes, and organic aquaculture; (iii) date marking; and (iv) the labeling of food derived from crops biofortified by natural selection. See…
Food and Drug Administration (FDA) researchers recently published a study claiming that consumers found it easier to compare food items with singleserving or dual-column nutrition facts (NF) labels as opposed to the NF labels currently in use. Lando and Lo, “Single-LargerPortion-Size and Dual-Column Nutrition Labeling May Help Consumers Make More Healthful Food Choices,” Journal of the Academy of Nutrition and Dietetics, February 2013. Scientists with FDA’s Center for Food Safety and Applied Nutrition apparently asked 9,482 adults to determine the healthfulness of a single product or compare the nutrition information on two products using one of the following NF configurations: (i) a single-column format listing two servings per container; (ii) a dual-column format listing two servings per container, with one column showing NFs per serving and one column showing NFs per container; and (iii) a single-column format listing a larger single serving per container. Within each of these formats, “there were…
A federal court in California has dismissed statutory and common law claims filed in a putative class action against Sioux Honey Association Cooperative, alleging that the company falsely labels its Sue Bee Clover Honey® product as “honey,” despite removing the pollen from the product. Ross v. Sioux Honey Ass’n Coop., No. 12-1645 (N.D. Cal., decided January 14, 2013). The court found the claims preempted or insufficiently pleaded in the plaintiff’s third amended complaint and, concluding that any further amendment would be futile, granted the motion to dismiss with prejudice. So ruling, the court declined to rule that the plaintiff lacked standing to bring the suit, finding that her pleadings satisfied the requirements of Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011), in which the California Supreme Court recognized that allegations of economic injury arising from reliance on a product manufacturer’s alleged misrepresentations satisfy the injury-in-fact requirement for standing under…
