A federal judge in California has refused to dismiss proposed class actions alleging that Ben & Jerry’s and Breyers ice cream products were falsely advertised as all natural. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 (N.D. Cal., decided May 26, 2011); Thurston v. Conopco, Inc., No. 10-4937 (N.D. Cal., decided May 26, 2011). Filed after the Center for Science in the Public Interest drew attention to the issue, the complaints argue that two units owned by Unilever PLC “misrepresented ice cream containing ‘Dutch’ or ‘alkalized cocoa’ as ‘all natural’” even though the ingredient is purportedly processed with synthetic potassium carbonate. The defendants had sought to dismiss both actions on the grounds that plaintiffs did not demonstrate an injury resulting from the “all natural” claim and could have easily applied for a refund if dissatisfied. Noting that plaintiffs may very well “have no actionable claims,” the court reasoned that, “If…
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A federal judge in California has granted class certification in a suit alleging that Diamond Foods, Inc. misbranded its shelled walnut products and misled consumers by using “express and implied statements about the positive effects of omega-3 fatty acid consumption on health.” Zeisel v. Diamond Foods, Inc., N0. 10-01192 (N.D. Cal., decided June 7, 2011). The labels at issue apparently featured a heart symbol banner with the phrase “Omega 3 2.5 g per serving” and a structural claim about the omega-3 in walnuts, as well as a qualified health claim approved by the Food and Drug Administration (FDA). After FDA issued a February 2010 warning letter about these so-called combination claims, a consumer filed a complaint alleging that Diamond used language not authorized by FDA and that its products “did not provide the health benefits that were claimed on the package labels.” Plaintiff then moved to certify a class of all…
The Food and Drug Administration (FDA) is seeking public comment on a study examining labeling claims on whole-grain products. Titled “Experimental Study on Consumer Responses to Whole Grain Labeling Statements on Food Packages,” the study is part of the agency’s “continuing effort to enable consumers to make informed dietary choices and construct healthful diets,” according to FDA. The study will examine (i) “consumer judgments about a food product including its nutritional attributes, overall healthiness, and health benefits”; (ii) “consumer judgments about a label in terms of its credibility in conveying the product’s nutritional attributes and its helpfulness in making product purchasing decisions”; (iii) “consumer perceptions about differences between different statements, such as ‘Made with Whole Grain,’ ‘Contains Whole Grain,’ and ‘Whole Grain”; (iv) “consumer extrapolation of whole grain statements beyond the scope of the statements themselves (i.e. halo effects)”; and (v) “how whole grain statements influence consumer use of the…
A federal court in California has reportedly dismissed without prejudice putative class claims filed against General Mills Inc. alleging that the company falsely conveyed to consumers that its Total Blueberry Pomegranate® cereal product contained real fruit. Dvora v. Gen. Mills Inc., No. 11-1074 (C.D. Cal., dismissed May 16, 2011). According to a news source, the court determined that the plaintiff’s state-law claims were preempted by federal product-labeling laws that allow a manufacturer to use a fruit’s name and image to describe a flavor even if the product contains no fruit. The claims were apparently based on allegations that the product was falsely labeled “naturally and artificially flavored” and the packaging was misleading. The court disagreed, saying, “If you look at the ingredients table, blueberry and pomegranate aren’t there. So I don’t understand how a reasonable consumer is somehow tricked into thinking it contains blueberry and pomegranate.” The court also said…
A federal jury agreed with POM Wonderful LLC that Welch Foods, Inc. developed intentionally confusing and misleading marketing and labeling for its White Grape Pomegranate juice product to take advantage of the market POM created for pomegranate juice, but determined that POM did not lose sales because of Welch’s conduct. POM Wonderful LLC v. Welch Foods Inc., No. 09-00567 (C.D. Cal., verdict reached September 13, 2010). More details about the case appear in Issue 290 of this Update. POM has reportedly asked the Ninth Circuit Court of Appeals to review the verdict, claiming that the lower court’s decision to try the case in two phases led the company to refrain from introducing evidence about lost sales during the first phase, which focused on liability. According to a news source, the company requested before the verdict that the court not instruct the jury to decide whether POM had lost sales, but…
The European Parliament’s Environment, Public Health and Food Safety Committee (ENVI) has reportedly amended draft legislation “to ensure that labels are legible, do not mislead, and provide the information that consumers need to make choices.” According to an April 19, 2011, press release, ENVI members have passed draft legislation “that aims to modernize, simplify and clarify” food labels by requiring them to include “mandatory nutritional information, inter alia on artificial trans fats and the country of provenance.” Under the new rules, meat products would also bear additional labeling to indicate “where the animal was born, reared and slaughtered,” whether the animal was “slaughtered without stunning (in accordance with certain religious traditions),” and whether a product is “formed meat” containing various meat parts. The rules would also forbid labels from misleading consumers about replaced ingredients and require foods containing aspartame to be labeled “Contains aspartame (a source of phenylalanine; might be unsuitable…
According to the Department of Justice, a Massachusetts-based fish packer has been convicted of several criminal charges for falsely labeling packages of frozen fish fillets. A federal jury in Boston found Stephen Delaney guilty of a felony violation of the Lacey Act for falsely labeling $8,000 worth of frozen pollock, a product of China, as more expensive cod loins, a product of Canada. The jury also convicted Delaney of one misdemeanor violation for misbranding food under the Food, Drug, and Cosmetic Act; he allegedly placed into interstate commerce $203,000 worth of Chinese frozen fish fillets falsely labeled as products of Canada, Holland, Namibia, and the United States. Evidence at trial apparently indicated that he also changed 4 oz. labels on some packages to 5 oz. labels. Delaney will be sentenced on June 8, 2011; he faces up to six years in jail and up to $350,000 in fines. See Department of…
A federal court in California has determined that some putative class claims can proceed against a company that allegedly makes false and misleading statements about its guacamole and spicy bean dip products. Henderson v. Gruma Corp., No. 10-04173 (C.D. Cal., decided April 11, 2011). The plaintiffs’ first amended complaint alleged five causes of action for violations of the state’s unfair competition and false advertising laws and the Consumer Legal Remedies Act. They claimed that the statements “0 g trans fat,” “with garden vegetables,” made in “the authentic tradition,” “0 g cholesterol,” and “all natural,” as to either or both products were false and misleading. The court first determined that the named plaintiffs, including a woman who recently brought and voluntarily dismissed similar claims against Hostess Brands, Inc., adequately alleged injury-in-fact to establish standing under Proposition 64. They alleged that they (i) “paid more for Mission Guacamole and Mission Bean Dip,…
The Office of the Under Secretary for Food Safety, the U.S. Department of Agriculture and the Food and Drug Administration have announced an April 25, 2011, public meeting in College Park, Maryland, to provide information and receive public comments on draft U.S. positions to be discussed at the 39th session of the Codex Committee on Food Labeling (CCFL) on May 9-13 in Quebec City, Canada. CCFL is responsible for such things as “studying problems associated with the advertisement of food with particular reference to claims and misleading descriptions for drafting provisions on labeling applicable to all foods.” Agenda items include (i) “recommendations on the declaration of sodium (salt)”; (ii) “mandatory nutrition labeling”; (iii) “labeling of foods and food ingredients obtained through certain techniques of genetic modification/ genetic engineering”; and (iv) “modified standardized common names.” See Federal Register, April 1, 2011. In a related matter, a public meeting was held April 5…
The Food and Drug Administration (FDA) has issued its proposed menu-labeling rule for chain restaurants and calorie-labeling rule for food in vending machines. According to Department of Health and Human Services Secretary Kathleen Sebelius, “These proposals will ensure that consumers have more information when they make their own food choices. Giving consumers clear nutritional information makes it easier for them to choose healthier options that can help fight obesity and make us all healthier.” Comments on the proposals, which were mandated under the Affordable Care Act, must be submitted by June 6, 2011, for the menu-labeling rule and by July 5 for the vending machine rule. Excluded from the menu-labeling rule are “[m]ovie theaters, airplanes, bowling alleys, and other establishments whose primary purpose is not to sell food,” and FDA is requesting comments “on whether additional types of food establishments should or should not be covered by the new rule.”…
