New York and New Jersey residents have filed a putative nationwide class action with two statewide subclasses against General Mills, Inc. in a Minnesota federal court, alleging that the company has violated federal and state consumer fraud laws by marketing its Nature Valley snack bars as “100% Natural” when they contain high-fructose corn syrup and other non-natural ingredients. Chin v. General Mills, Inc., No. 12-2150 (D. Minn., filed August 31, 2012). The plaintiffs also allege that the products contain highly processed high-maltose corn syrup and the texturizer maltodextrin. They allege that they relied on the company’s marketing and advertising and purchased its products “believing them to be 100% natural,” but sustained “injury in fact and lost money as a result of General Mills having misrepresented the Nature Valley Products.” According to the complaint, General Mills incorporates the “100% Natural” claim into its primary branding of the Nature Valley products and…
Tag Archives labeling
The Food and Drug Administration (FDA) has announced a draft compliance policy guide (CPG) concerning the “Labeling and Marketing of Nutritional Products Intended for Use to Diagnose, Cure, Mitigate, Treat, or Prevent Disease in Dogs and Cats.” According to the September 10, 2012, Federal Register notice, the draft CPG explains how FDA plans “to use its enforcement discretion with regard to the labeling and marketing of dog and cat food products that are labeled and/or marketed as intending to diagnose, cure, mitigate, treat, or prevent diseases and to provide nutrients in support of meeting the animal’s total daily nutrient requirements.” Issued in response to new animal drug provisions of the Federal Food, Drug, and Cosmetic Act (FD&C Act), the draft CPG seeks to address an observed increase in the number of cat and dog food products “that make labeling or marketing claims” about disease diagnosis, treatment or prevention. It also…
According to a news source, a Brazilian court has determined that Nestlé’s strawberry-flavored Bono Cookies® contain genetically modified (GM) soybeans at levels in excess of a 1 percent limit and that the company must thus place a yellow triangle with a “T” in the middle along with the word “transgenic” on its product labels. Failure to do so will apparently result in a fine of nearly $2,500 USD per product found in the market to contravene the order. The European Union and Japan also reportedly require GM foods to be labeled, and California voters will vote on a GM labeling referendum this fall. See Food World News, August 27, 2012.
A divided D.C. Circuit Court of Appeals has determined that the graphic antismoking images which the Food and Drug Administration (FDA) selected for placement on cigarette packages for the purpose of reducing smoking rates in the United States fail the intermediate scrutiny standard for compelled commercial speech. R.J. Reynolds Tobacco Co. v. FDA, No. 11-5332 (D.C. Cir., decided August 24, 2012). According to the court, which vacated the graphic warning requirements and remanded to the agency, “FDA failed to present any data much less substantial evidence required under the [Administrative Procedure Act]—showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates.” The court discusses the different standards applied when deciding whether government efforts to regulate speech are permissible under the First Amendment. A strict scrutiny standard, for example, gives government little leeway to compel or proscribe speech and imposes a heavy burden on…
According to a news source, putative class actions have been filed against Strauss Group Ltd. and Tnuva Food Industries Ltd., alleging that their yogurt products, marketed as “yogurt with granola nuts” and “yogurt with granola fruit, “ respectively, mislead consumers because they contain so little nuts or fruit. Seeking NIS 72 million (US$17.8 million) from Strauss, which has a 42 percent market share, and NIS 142.5 million (US$35.3 million) from Tnuva, the petitioners reportedly claim that the products should be labeled as “flavored” with the ingredients. See Middle East North Africa Financial Network, August 12, 2012.
Dole Food Co. has filed a motion to dismiss or strike claims in a putative class action alleging that its food product labels mislead consumers. Brazil v. Dole Food Co., Inc., No. 12-1831 (N.D. Cal., motion filed August 13, 2012). Identifying the plaintiff as a “repeat class representative” who recently received an incentive award in another lawsuit, Dole argues that his claims are preempted under federal law, he lacks standing because he has not been injured, the claims are not plausible, and he has failed to state a claim under California law. The company also notes that the case is “one of 24 (and counting) nearly identical ‘misbranding’ class action cases filed during a 15-week blitz by nine law firms from six different states,” thus making it an “assembly-line” complaint that follows “a common recipe.” In summary, Dole contends, “By this lawsuit, Plaintiff seeks colossal damages, punitive damages, and a nationwide injunction…
The Center for Science in the Public Interest (CSPI) has filed a putative class action on behalf of two named California residents against General Mills alleging that its use of “All Natural,” “Natural,” and “100% Natural” product representations on its Nature Valley® food products is deceptive because they contain high-fructose corn syrup (HFCS), high-maltose corn syrup, and maltodextrin and rice maltodextrin. Janney v. General Mills, No. 12-3919 (N.D. Cal., filed July 26, 2012). According to the complaint, these ingredients are not “minimally processed,” yet the defendant purportedly “takes wrongful advantage of consumers’ strong preference for foods made entirely of natural ingredients” with words and images in its marketing and on product labels evocative of the outdoors and nature. While one of the named plaintiffs purchased “natural” food for a daughter with type 1 diabetes and the other sought an all-natural diet for a daughter with ADHD, they do not allege personal…
While a federal court in California has dismissed warranty claims filed under federal law against an ice cream manufacturer sued for allegedly misleading consumers by labeling its products with the phrases “All Natural Flavors” and “All Natural Ice Cream,” most of the plaintiffs’ state law-based claims will proceed. Astiana v. Dreyer’s Grand Ice Cream, Inc., No. 11-2910; Rutledge-Muhs v. Dreyer’s Grand Ice Cream, Inc., No. 11-3164 (N.D. Cal., order entered July 20, 2012). The plaintiffs allege that Dreyer’s and Edy’s ice cream products should not bear labels stating “All Natural Flavors” because they contain between one and five artificial and/or synthetic ingredients, and the company’s Haagen-Dazs ice cream products should not bear labels stating “All Natural Ice Cream” because they contain cocoa processed using a synthetic and/or artificial alkalizing agent. They allege violation of written warranty under the Magnuson-Moss Warranty Act; common law fraud; unlawful, unfair and fraudulent business practices and false…
FDA has issued a request for comments on a proposed information collection that will add the manufacturers of certain beers as respondents to its labeling regulations and seeks Office of Management and Budget approval of allergen labeling for these beers. The agency explains that after the Alcohol and Tobacco Tax and Trade Bureau determined that certain beers, which are made from substitutes for malted barley, such as sorghum, rice or wheat, do not meet the definition of “malt beverage” and are thus not subject to its regulations, the Food and Drug Administration (FDA) prepared draft guidance to assist these manufacturers in complying with its labeling regulations. On the basis of the labeling regulations discussed in the guidance, the agency provides estimates of the average burden per disclosure for each regulation— that is, “12 respondents will each label 2 products annually, for a total of 24 labels” and “the manufacturers will…
Representative John Carter (R-Texas) has introduced a bill (H.R. 6174) that would change the nutrition disclosure requirements for chain restaurants and other food outlets enacted in the Affordable Care Act that was recently upheld as constitutional by the U.S. Supreme Court. Under the proposal, (i) delivery and take-out restaurants would be able to post calorie information on their websites; (ii) pizza shops would be allowed to provide calorie-per-slice labeling rather than whole-pizza totals and could publish average totals instead of calorie data for every possible combination of ingredients; (iii) stores would be protected from lawsuits where the nutrient disclosures are “within acceptable allowances” including “allowances for variation in serving size, inadvertent human error in formulation of menu items, and variations in ingredients”; and (iv) the term “restaurant” would be redefined to mean “a retail food establishment that derives more than 50 percent of its total revenue from the sale of…
