The Australian Competition and Consumer Commission (ACCC) has fined a Kensington, South Australia, olive oil manufacturer a total of A$13,200 for marketing its products as “extra virgin” even though they purportedly did not meet international grade standards. According to a May 18, 2012, ACCC press release, The Big Olive Company Pty Ltd over a four-month period “supplied nearly three thousand 500ml bottles of ‘Oz Olio’ oil with a representation of extra virgin olive oil on the front label.” The commission has since alleged that some of these oils contained “more free fatty acids than permitted by olive oil trade standards,” indicating that the “olives used to make the oil were old, damaged or otherwise of poor quality and the oil was not extra virgin olive oil at the time of bottling.” ACCC apparently decided to test four imported oils and three domestic labels after receiving complaints from the Australian Olive…
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A federal court in California has dismissed several of the claims brought in a putative class action against General Mills, alleging that the company misleads consumers with the package labeling for its Fruit Roll-Ups® and Fruit by the Foot® products. Lam v. General Mills, Inc., No. 11-5056 (N.D. Cal., order entered May 10, 2012). Additional details about the litigation, in which the Center for Science in the Public Interest is representing the plaintiffs, appear in Issue 414 of this Update. The court agreed with General Mills that label statements about the products’ flavorings, i.e., “naturally flavored” and “fruit flavored,” conform to federal law, and thus state-law claims alleging that these statements are misleading or deceptive are preempted. In this regard, the court noted, “the regulation allows a producer to label a product as ‘natural strawberry flavored,’ even if that product contains no strawberries. While the regulation’s logic is troubling, the Court…
The European Commission has approved a list of 222 health claims—“for example on the role of calcium and bone health or vitamin C and the immune system”—that are permitted for use on food labeling and advertising. According to a May 16, 2012, press release, food manufacturers must adapt their practices to the new requirements by the beginning of December 2012, at which point “all claims that are not authorized and not on hold/under consideration shall be prohibited.” “Today’s decision is the culmination of years of work and marks a major milestone in regulating health claims on food,” said Health and Consumer Policy Commissioner John Dalli. “The EU-wide list of permitted health claims will be available on-line and will allow consumers everywhere in the EU to make an informed choice. Non-scientifically backed claims will have to be removed from the market after a short transition period.”
Health and consumer organizations have urged the Obama administration to provide calorie labeling in “all retail food establishments that sell restaurant-type food, including supermarkets, convenience stores, movie theaters, casinos, bowling alleys, stadium, cafes in superstores, and hotels.” In a May 16, 2012, letter, representatives of more than 20 organizations in the National Alliance for Nutrition & Activity (NANA) took issue with the Food and Drug Administration’s (FDA’s) definition of “retail food establishments” as outlined in an April 2011 proposal for nutritional menu labeling for chain restaurants and vending machines mandated under the Affordable Care Act. The proposed rule was covered in Issue 389 of this Update. NANA argued that the definition would not only exclude other venues but “significantly limit the ability of consumers to make informed choices by reducing the number of venues providing calorie labeling.” In addition, the group advocates the inclusion of alcohol labeling in FDA’s final…
A federal court in Maryland has dismissed, under the first-to-file rule, a lawsuit brought by a plaintiff characterized as a “frequent flyer in the United State judicial system,” finding that five similar putative class action lawsuits against the defendants, three of which were filed before the plaintiff filed his complaint, are currently pending in a federal court in California. Hinton v. Naked Juice Co., No. 11-3740 (D. Md., decided April 30, 2012). The plaintiff, who has apparently filed at least 43 other federal civil lawsuits, all dismissed as frivolous, sought $100,000 in damages from the defendants, claiming that they label their beverages as “Non-GMO” and “natural” while using genetically modified and synthetic ingredients. He filed the complaint in state court, and it was removed to federal court. After the defendants sought to dismiss the case or transfer it to California on convenience grounds, the plaintiff filed a motion for remand.…
The Second Circuit Court of Appeals has determined that a New York law enacted in 2004, following the invalidation of a prior version, does not violate the Establishment or Free Exercise Clauses of the U.S. Constitution and is not unconstitutionally vague. Commack Self-Service Kosher Meats, Inc. v. Hooker, No. 11-3517 (2d Cir., decided May 10, 2012). The previous law, which defined “kosher” in terms of orthodox Hebrew religious requirements and required adherence to them, was found to (i) advance religion, i.e., the dietary restrictions of Orthodox Judaism, and (ii) inhibit religion “by preventing labeling of food products as kosher that did not meet the Orthodox Jewish religious requirements.” The newer version simply required those marketing their food products as “kosher” to label them as kosher and to “identify the individuals certifying their kosher nature.” The new law did not “define kosher or authorize state inspectors to determine the kosher nature…
A California organization has reportedly gathered enough signatures to put a genetically modified organism (GMO) labeling initiative on the state ballot during the November 6, 2012, general election. According to a May 2, 2012, press release, the Committee for the Right to Know has registered 971,126 signatures, of which 555,236 must prove valid for the initiative to be included on the ballot. Submitted to the state attorney general as an initiative measure, the proposed California Right to Know Genetically Modified Food Act would require (i) raw agricultural commodities produced with genetic engineering to bear “clear and conspicuous” labels conveying this information, and (ii) all processed retail foods to display labels stating “Partially Produced with Genetic Engineering” or “May be Partially Produced with Genetic Engineering.” The act would also prohibit such foods from being marketed as “natural,” but would not apply to prepared meals sold in restaurants and intended for immediate…
The Ninth Circuit Court of Appeals has affirmed the dismissal of a putative class action filed against Dreyer’s Grand Ice Cream, Inc., alleging that the company misrepresented its products by labeling them as “0g Trans Fat” when they actually contain some trans fat per serving. Carrea v. Dreyer’s Grand Ice Cream, Inc., No. 11-15263 (9th Cir., decided April 5, 2012) (unpublished). According to the court, because the products contain less than 0.5 grams of trans fat per serving, “the Nutrition Facts panel must express this amount as zero” under federal law, and the “same rule applies to the statement” on the front-of-package label. “In essence,” said the court, “Carrea seeks to enjoin and declare unlawful the very statement that federal law permits and defines. Such relief would impose a burden through state law that is not identical to the requirements under section 343(r). These claims are therefore expressly preempted.” The court also found…
A federal court in California has granted in part and denied in part the defendant’s motion to dismiss claims that its product labels, ads and Website representations for Muscle Milk® ready-to-drink beverages and snack bars violate state unfair competition and false advertising laws and the California Consumers Legal Remedies Act, and constitute fraud, negligent misrepresentation and unjust enrichment. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., decided April 11, 2012). While the court determined that the plaintiff has standing to pursue the putative class claims and that the claims are not preempted by federal law nor should be stayed under the primary jurisdiction doctrine, it found many of her claims insufficiently pleaded. According to the court, the only claim that survives the motion to dismiss alleges that the term “healthy fats” on the 14-ounce Muscle Milk® ready-to-drink label could constitute deceptive product labeling, because “[a] reasonable consumer would be likely…
The U.S. Department of Agriculture’s Food Safety and Inspection Service and the Food and Drug Administration have announced an April 18, 2012, public meeting in Washington, D.C., to provide information and receive public comments on draft U.S. positions to be discussed at the 40th Session of the Codex Committee on Food Labeling (CCFL) on May 15-18, 2012, in Ottawa, Ontario, Canada. Agenda items include additional conditions for nutrient health claims and comparative claims. See Federal Register, April 9, 2012.
