A federal court in Alabama has granted in part a motion to stay discovery in litigation alleging that an orange juice maker misrepresented that its product is not made from juice concentrate, but is rather “100% pure Florida squeezed.” Leftwich v. TWS Mktg. Group, Inc., No. 11-1879 (N.D. Ala., order entered December 12, 2011). The court will allow discovery as to “general personal jurisdiction” over the non-resident beverage maker to proceed, while staying discovery as to all other matters. Residents of Indiana and Alabama brought the putative class action after the Food and Drug Administration warned the company in November 2010 that its labeling violated the Federal Food, Drug, and Cosmetic Act. According to the court, if jurisdiction over the defendant is lacking, it will dismiss the Indiana plaintiff, “leaving [the Alabama plaintiff] to proceed only on the count of unjust enrichment—which itself is still subject for consideration in [the…
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The Center for Science in the Public Interest (CSPI) has petitioned the Food and Drug Administration (FDA) to require the disclosure of food color additives on front-of-package labeling. Citing “the ubiquity of food colorings” in the American diet, the petition claims that consumers are misled when colorings are used to either mask less-nutritious ingredients or make a product “appear to be of higher quality or nutritional value than it actually is.” The group also points to studies suggesting a link between certain food additives and behavioral effects in children. CSPI urges FDA to “amend the labeling requirements set forth at 21 C.F.R. § 101.22” to require foods containing such additives to state “Artificially Colored” “on the product display package next to the product name in bold letters not less than half the height and weight of the name of the food.” According to CSPI, FDA already possesses the statutory authority and…
The U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) has issued a proposed rule to “expand the circumstances under which FSIS will generically approve the labels of meat and poultry products.” Under the proposal, which would also combine regulations into a new CFR part, FSIS would reportedly allow establishments “to label a broader range of products without first submitting the label to FSIS for approval.” As the agency explained in a December 5, 2011, press release, “all mandatory label features would still need to comply with FSIS regulations.” In particular, FSIS noted that the current generic label regulations are too restrictive in practice, compelling the agency to pre-approve “a significant amount of labeling” instead of dedicating resources to other consumer protection and food safety activities. “For example, the label for a nonstandardized product, such as pepperoni pizza (bearing no special statements or claims) that was sketch approved…
The Consumer Federation of America (CFA) has written a letter to the Food and Drug Administration (FDA) supporting a legal petition that demands required labeling of all genetically engineered (GE) food. Information about the October 4, 2011, petition filed by the Center for Food Safety appear in Issue 412 of this Update. Representing nearly 300 nonprofit consumer organizations concerned with food safety, agricultural biotechnology, food and agricultural policy, and nutrition, CFA claims that current FDA regulations fail to provide consumers with information about GE food despite growing public interest in food content. “Genetically engineered foods are required to be labeled in the 15 European Union nations, Russia, Japan, China, Australia, New Zealand, and many other countries around the world,” the November 23 letter states. “U.S. consumers should be provided the same basic information about GE foods as consumers in these other countries.”
The Food and Drug Administration (FDA) has issued a final rule requiring animal and pet food labels to list “the common or usual names” of any certified color additives used in the products. Issued in response to the Nutrition Labeling and Education Act of 1990, the final rule brings animal food labeling in line with current human food regulations by adding “paragraph (k) to the animal food labeling regulations at § 501.22 (21 CFR 501.22).” The first part of paragraph (k) explains that any FDA-certified color additive used in animal foods “must be declared in the ingredient list” under the name listed in 21 CFR part 74 or 21 CFR part 82, although manufacturers are permitted to “parenthetically declare an appropriate alternative name of the certified color additive following its common or usual name.” In addition, the new rules require that the term “Lake” be included “in the declaration of…
U.S. Representatives Edward Markey (D-Mass.) and Barney Frank (D-Mass.) have reportedly asked the Federal Trade Commission (FTC) to investigate claims that seafood sold in grocery stores, restaurants and markets is often mislabeled. According to the congressmen’s October 31, 2011, letter, two separate investigative reports used DNA testing to conclude that purveyors frequently sold seafood as more expensive or different varieties. In particular, The Boston Globe reported that 48 percent of fish sampled in the area were sold under the wrong name, while Consumer Reports estimated that more than one-fifth of the 190 pieces of seafood it tested in Connecticut, New Jersey and New York were “mislabeled as a different species of fish, incompletely labeled, or misidentified by employees.” The latter report also noted that all 10 of the “lemon soles” and 12 of the 22 “red snappers” purchased were not the species advertised. “Only four of the 14 types of fish…
California residents have filed a putative class action in a federal court against grocery chain Trader Joe’s Co., alleging that a number of its “All Natural” products contain synthetic or artificial ingredients and thus are mislabeled and falsely advertised. Larsen v. Trader Joe’s Co., No. 11-5188 (N.D. Cal., filed October 24, 2011). According to the complaint, “The labeling of products as ‘All Natural’ carries implicit health benefits important to consumers—benefits that consumers are often willing to pay a premium for over comparable products that are not ‘All Natural.’ Trader Joe’s has cultivated and reinforced a corporate image that has catered to this ‘All Natural’ theme and has boldly emblazed this claim on each and every one of its foods identified above, despite the fact Trader Joe’s uses synthetic ingredients in the products identified above.” The listed products include cookies, biscuits, cheese, fruit jellies, and apple juice sold under the Trader…
A natural foods co-op in Durango, Colorado, has reportedly rolled out a new labeling initiative for products free of genetically modified organisms (GMO) to recognize “October’s designation as national non-GMO month.” According to an October 19, 2011, article in The Durango Herald, the local co-op displays two labels on shelves to indicate products certified by the Non-GMO Project and those verified by manufacturers as containing no GMOs. “Normally, consumers would have to do the research or call manufacturers themselves if they wanted that information,” the store’s marketing manager told the Herald while noting that the co-op itself is also a member the National Cooperative Growers Association, Just Label It Campaign and Non-GMO Project. As another natural grocer apparently elaborated, “Without GMO labeling, the only way to know if products contain genetically engineered foods is if they are made with 100 percent USDA-certified organic ingredients.” The manager of a third area…
According to legal commentators, including Shook, Hardy & Bacon Agribusiness & Food Safety Practice Co-Chair Madeleine McDonough, while the floodgates have opened on litigation against food and beverage makers accusing them of misleading consumers with “All Natural” labels, proving that each plaintiff relied on the representation to purchase a given product may ultimately doom this recent class action trend. In a Law360 article titled “‘All Natural’ Class Action Wave May Be Short-Lived,” even plaintiffs’ lawyers concede that consumers expecting “all natural” products to provide some undefined quality will have difficulty proving that everyone relied on the representation when purchasing the product. Noting that the Food and Drug Administration has not placed a priority on defining the term in conjunction with foods and beverages, which makes it a fertile ground for litigation, McDonough also said that plaintiffs face the hurdle of proving a concerted effort to defraud them. In her experience,…
The Seventh Circuit Court of Appeals has dismissed with prejudice consumer protection claims filed against two companies that make snack bars with extra fiber, finding the claims preempted under federal law. Turek v. General Mills, Inc., No. 10-3267 (7th Cir., decided October 17, 2011). According to the court, “The disclaimers that the plaintiff wants added to the labeling of the defendants’ inulin-containing chewy bars are not identical to the labeling requirements imposed on such products by federal law, and so they are barred.” The plaintiff had sought the inclusion of information on chewy bar product labels indicating that inulin derived from chicory root “produces fewer health benefits than a product that contains only ‘natural’ fiber,” and that “inulin from chicory root should not be consumed by pregnant or lactating women.” Additional details about the complaint and the district court’s ruling dismissing the claims appear in Issues 327 and 364 of…
