The Food and Drug Administration (FDA) recently opened a docket pertaining to a petition filed by Philadelphia seeking to exempt from preemption a menu labeling ordinance that requires chain restaurants and retail food facilities in the city to provide calorie, fat and sodium information for the food and beverage products they sell. According to the petition, the ordinance meets three requirements under the Federal Food, Drug, and Cosmetic Act allowing FDA to grant an exemption from preemption: the ordinance “was designed to address a particular local need for information which need is not met by the requirements” of federal labeling law, the exemption from preemption “would not unduly burden interstate commerce,” and the exemption “would not cause any food to be in violation of any applicable requirement under federal law.” Philadelphia contends that while Congress required uniformity in chain restaurant menu labeling as part of the Patient Protection and Affordable…
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The Institute of Medicine (IOM) has released the second of its two-phase report on front-of-package (FOP) rating systems and symbols for food products, advocating a “fundamental shift” in labeling strategy. While its first phase, released in October 2010, analyzed nutrition rating systems and the scientific research that underlies them, the new 231-page assessment examines consumers’ use and understanding of FOP systems. Details of the first phase were featured in Issue 368 of this Update. Concluding that “it is time for a move away from front-of-package systems that mostly provide nutrition information on foods or beverages but don’t give clear guidance about their healthfulness,” IOM recommends that the Food and Drug Administration allow only four items on any FOP system— calories, saturated and trans fat, sodium, and sugar. It suggests the agency develop, test and implement a single, standard point system from zero to three—designated by a simple icon like check…
The consumer group Citizens for Health has launched a website, FoodIdentityTheft.com, change of High Fructose Corn Syrup” and urges readers to contact federal agencies to oppose relabeling the ingredient “corn sugar.” The site also targets tomato sauces advertised as using “only the finest tomatoes” and blueberry-flavored products that allegedly contain “absolutely no blueberries.” “Many consumers believe that the U.S. government will protect us from false advertising or stop corporations from making unproven claims about their products,” said the site’s senior editor Linda Bonvie in a September 27, 2011, Citizens for Health press release. “But the truth is, corporations and their lobbyists have a huge influence in Washington. We as consumers have to protect ourselves, stay informed, and tell our legislators and government agencies that we won’t accept being lied to.” Dedicated to the “natural health consumer,” Citizens for Health has also organized a march from New York City to the…
A Texas resident has filed a putative nationwide class action against the Naked Juice Co., alleging that its “100% Juice,” “100% Fruit,” “All Natural,” and “non-GMO” beverage products are falsely labeled because they contain synthetic and genetically modified (GM) ingredients. Sandys v. Naked Juice Co., No. 11-8007 (C.D. Cal., filed September 27, 2011). The complaint claims that the defendants concealed the nature, identity and source of their products’ added ingredients, such as vitamins and “natural flavors,” and that the plaintiff paid a premium price for falsely labeled products and ingested substances she did not expect and did not consent to. The plaintiff also contends that some of the product ingredients are harmful to human health and the environment as well as to the workers who produce them. Alleging numerous violations of state and federal consumer fraud and product warranty laws, negligence and negligent misrepresentation, strict liability, assault and battery, and conspiracy,…
A federal court in Florida has dismissed with prejudice most of the claims asserted in a putative class action alleging that “percent fat free” labels on the packages of deli meats are misleading and deceptive. Kuenzig v. Kraft Foods, Inc., No. 11-838 (Tampa Div., decided September 12, 2011). Additional information about the case appears in Issue 391 of this Update. The court found all but one of the plaintiff’s claims preempted by federal food-labeling law and also found that all but one of his claims failed to state a claim because they were frivolous or disingenuous. As to defendant Hormel Foods Corp., the plaintiff had alleged that while the company’s labels do not indicate the number of calories per serving next to the “percent fat free” claim on the front of its product packaging, the labels are “somehow misleading by association, since Hormel’s products are on grocery shelves next to Kraft’s products.”…
Concluding that “dolphin-safe” tuna product labels authorized by the U.S. Commerce Department “are more trade-restrictive than necessary to achieve a legitimate objective,” a World Trade Organization (WTO) panel has given a partial victory to Mexico, which filed a complaint in 2009 claiming that the labels were illegal because they excluded Mexican yellowfin tuna from the U.S. market and shut down one-third of its tuna fleet. The WTO panel rejected Mexico’s claim that the U.S. labeling provisions discriminate against its tuna products, finding “that Mexican tuna products are not afforded less favourable treatment than tuna products of the US and other origins in respect of the US dolphin safe labeling provisions on the basis of their origin.” Still, the panel recommended that the United States be asked “to bring its measures into conformity with its obligations” under the Technical Barriers to Trade agreement. Mexican Economy Secretary Bruno Ferrari reportedly responded to news…
A Texas resident has filed a putative class action against the Kashi Co. and its parent, the Kellogg Co., in a California federal court, alleging that the company falsely labels and markets its products as “all natural” when they actually contain processed and synthetic ingredients, some of which are not generally recognized as safe by the Food and Drug Administration (FDA). Bates v. Kashi Co., No. 11-1967 (S.D. Cal., filed August 24, 2011). Seeking to certify a nationwide class of consumers, the plaintiff names in the complaint dozens of ingredients used in Kashi snack, cereal, pizza, fruit bar, waffle, shake, trail mix, cookie, and cracker products, explains how they are produced and indicates whether they or the processes that create them are hazardous or toxic. For example, the plaintiff claims that sodium selenite is a hazardous substance. “The FDA has not declared it generally recognized as safe as a food…
The Center for Science in the Public Interest (CSPI) recently sent a letter to Food and Drug Administration (FDA) Commissioner Margaret Hamburg urging the agency to act on an April 2005 advance notice of proposed rulemaking (ANPR) related to serving-size regulations. According to the letter, CSPI first responded to the ANPR by asking FDA to (i) “take enforcement action against manufacturers that mislabel products as multiple servings when they are typically consumed in one eating occasion,” and (ii) “initiate a rulemaking proceeding to revise the Reference Amounts Currently Consumed (‘RACC’) regulations to reflect consumption patterns that have developed since the data were collected” in the 1970s. In particular, the consumer watchdog has singled out canned soup, ice cream, coffee creamer, and aerosol non-stick cooking sprays as bearing “unrealistic” serving-size labels that “understate the calories, sodium and saturated fat consumers are likely to get from those products.” “Given the prevalence of…
The Food and Drug Administration (FDA) has reopened the comment period for its proposed “gluten-free” food labeling rule. Originally published in January 2007, the proposed rule would have defined the term “for voluntary use in the labeling of foods, to mean that the food does not contain an ingredient that is any species of wheat, rye, barley, or a crossbred hybrid of these grains (collectively referred to as ‘prohibited grains’); an ingredient that is derived from a prohibited grain and that has not been processed to remove gluten (e.g., wheat starch), if the use of that ingredient results in the presence of 20 parts per million (ppm) or more gluten in the food; or 20 ppm or more gluten.” FDA seeks comments on a report titled “Health Hazard Assessment for Effects of Gluten Exposure in Individuals with Celiac Disease: Determination of Tolerable Daily Intake Levels and Levels of Concern for…
Less than two weeks after a consumer fraud class action was filed in California against the company that makes Muscle Milk® beverages and protein bars, the Food and Drug Administration (FDA) sent a letter to its CEO warning that the products are misbranded because their labels either prominently feature the word “milk” without containing any or state that they contain no milk while made of milk-derived ingredients. The letter also warns that health-related claims or “0 trans fat” assertions are unauthorized because the products contain too much fat or too much saturated fat. The June 29, 2011, letter demands a response within 15 days of receipt. Additional information about the lawsuit appears in Issue 403 of this Update. According to a news source, CytoSport has indicated that it is “proactively and openly addressing the FDA’s labeling concerns” and also notes, “Concerns like this have been raised before when the dairy…
