A federal court in New Jersey has granted in part the motion to dismiss filed by the Campbell Soup Co. in litigation alleging that consumers were misled by the company’s lower-sodium labels, believing they were a healthier alternative to regular soups, which allegedly contain about the same levels of sodium as the more expensive low-sodium versions. Smajlaj v. Campbell Soup Co., No. 10-1332 (D.N.J., decided March 23, 2011). The plaintiffs seek to represent a nationwide class of consumers, and named plaintiff Rosa Smajlaj has voluntarily dismissed her claims, so the suit will proceed with four other New Jersey residents as named plaintiffs. The defendant sought to dismiss the claims under the plausibility pleading standard established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and on the basis of federal preemption. The court determined that the claims of misleading labels were not…
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A federal court in California has dismissed as preempted state-law claims that Smart Balance falsely labeled and advertised its Nucoa® margarine product; the court also denied the plaintiff’s motion to certify a class. Yumul v. Smart Balance, Inc., No. 10-00927 (C.D. Cal., order entered March 14, 2011). Additional information about the complaint, which has twice been amended after previous rulings on motions to dismiss, appears in Issue 359 of this Update. The defendant argued in its response to the plaintiff’s motion for class certification that the claims were preempted by federal law and thus could not be certified. The plaintiff argued that the defendant had waived this defense by not asserting it in its previous motions to dismiss. According to the court, the defendant did not waive the defense, because it had been preserved in the company’s answer and because the company “is entitled to raise the defense any time prior…
The Cornucopia Institute, a consumer watchdog and proponent of “family-scale farming,” has reportedly filed a complaint with the Federal Trade Commission (FTC), alleging that an Oregon-based cereal maker is misleading consumers with its “all natural” product claims. According to the institute, Hearthside Food Solutions, which makes Peace Cereal, labels its products as “natural” and then states on its website that “natural foods are foods without pesticides or artificial additives, as well as being minimally processed and preservative-free.” Noting that the federal government has not adopted a definition of or requirements for “natural” food products, the Cornucopia Institute alleges that by using conventionally grown food ingredients, Hearthside is selling products routinely sprayed with pesticides and herbicides. Peace Cereal was apparently certified organic in the past, but has not been since 2008. Yet, according to the Cornucopia Institute, stores in several states continue to carry “organic” signs on shelves containing nonorganic Peace…
The Cornucopia Institute, a consumer watchdog and proponent of “family-scale farming,” has reportedly filed a complaint with the Federal Trade Commission (FTC), alleging that an Oregon-based cereal maker is misleading consumers with its “all natural” product claims. According to the institute, Hearthside Food Solutions, which makes Peace Cereal, labels its products as “natural” and then states on its website that “natural foods are foods without pesticides or artificial additives, as well as being minimally processed and preservative-free.” Noting that the federal government has not adopted a definition of or requirements for “natural” food products, the Cornucopia Institute alleges that by using conventionally grown food ingredients, Hearthside is selling products routinely sprayed with pesticides and herbicides. Peace Cereal was apparently certified organic in the past, but has not been since 2008. Yet, according to the Cornucopia Institute, stores in several states continue to carry “organic” signs on shelves containing non-organic Peace…
The director of legal initiatives for Yale University’s Rudd Center for Food Policy and Obesity has authored an article on front-of-package (FOP) food and beverage labeling that calls for “new directions for research and regulation.” Jennifer Pomeranz, “Front-of-Package Food and Beverage Labeling: New Directions for Research and Regulation,” American Journal of Preventative Medicine, March 2011. Claiming that “food labels have become unwieldy from a consumer, health, and regulatory perspective,” Jennifer Pomeranz’s article explores the current state of “FOP schemes, health and nutrition claims, and enforcement activity,” and makes specific research recommendations for each context. In particular, it notes several areas—such as health and nutrition claims—that appear ripe for regulation and where additional scientific evidence could overrule First Amendment objections. “When the FDA and industry finalize their FOP schemes, research will be needed to assess their scientific validity, their efficacy for consumer use and comprehension, and whether a mandatory FOP scheme is necessary,”…
The parties litigating whether Welch Foods, Inc. falsely labeled its “100% Juice White Grape Pomegranate flavored 3 juice blend” beverage have filed a stipulation of settlement in a California federal court. Burcham v. Welch Foods, Inc., Nos. 09-05946 and 10-01427 (C.D. Cal., filed February 7, 2011). Under the agreement, a nationwide class of consumers would release their claims in return for refunds and coupons for replacement products, depending on whether they can prove that they purchased the product. The company would place coupons for free juice products in Sunday newspapers throughout the United States at a total value of $30 million. While Welch’s continues to maintain that the labeling claims are preempted by federal law and that the company has complied in all respects with federal law, it also claims that it lost money selling the white grape pomegranate juice. Acknowledging the difficulties in locating class members, Welch’s has also…
The Grocery Manufacturers Association (GMA) and the Food Marketing Institute (FMI) have introduced a new front-of-pack (FOP) labeling system in response to first lady Michelle Obama’s campaign for clearer consumer information. According to a January 24, 2011, press release, the Nutrition Keys initiative summarizes important information “from the Nutrition Facts panel in a clear, simple and easy-to-use format” that adheres “to current U.S. Food and Drug Administration [FDA] guidelines and regulations.” The FOP label features four basic icons for calories, saturated fat, sodium, and sugars, as well as optional “nutrients to encourage” icons indicating that the product meets FDA “good source” requirements and contains more than 10 percent of the daily value per serving for protein and the following under-consumed nutrients: potassium, fiber, vitamin A, vitamin C, vitamin D, calcium, and iron. See GMA Press Release, January 24, 2011. Food companies can begin using the new icons this year, but…
A California resident has filed a putative class action against Taco Bell Corp., alleging that the company violates consumer protection laws by mislabeling some of its beef products as containing seasoned beef “when in fact a substantial amount of the filling contains substances other than beef.” Obney v. Taco Bell Corp., No. 11-00101 (C.D. Cal., filed January 19, 2011). Seeking to certify a nationwide class of consumers and claiming that damages exceed $5 million, the plaintiff alleges violations of California’s Consumer Legal Remedies Act and unlawful business acts and practices, including misbranded food in violation of federal law. She also asks for declaratory and injunctive relief, a corrective advertising campaign, attorney’s fees, and costs. According to plaintiff’s counsel, testing has shown that “the taco meat filling is about 35 percent meat.” The complaint asserts that the company’s use of the term “seasoned beef” in the labeling and advertising of its beef…
A federal district court in New York has granted the motion for summary judgment filed by Snapple Beverage Corp. in a case alleging that the company misled consumers by labeling its teas and juice drinks as “All Natural” because the company’s beverages contain high-fructose corn syrup (HFCS). Weiner v. Snapple Beverage Corp., No. 07-8742 (S.D.N.Y., decided January 21, 2011). The court had previously denied plaintiffs’ motion for class certification but determined, despite that denial, that it could decide the merits of the summary judgment motion even though the lawsuit now failed to satisfy the requirements of original diversity jurisdiction. The defendant argued that the plaintiffs did not offer any evidence showing injury from Snapple’s “All Natural” labeling, and the court agreed. Analyzing each claim—violation of a state deceptive practices law, unjust enrichment, and breach of express and implied warranty—the court found that the plaintiffs failed to present reliable evidence that they…
The Oakland-based Prevention Institute has issued a report claiming that front-of-package (FOP) labeling for children’s food is “misleading.” Authors of the study used the Children’s Food and Beverage Advertising Initiative’s product list to identify 58 prepared foods, snacks, cereals, and beverages with FOP labeling. The researchers then defined a product as “unhealthful” if it met one or more of the following criteria: (i) greater than 35 percent calories from fat; (ii) greater than 10 percent calories from saturated fat; (iii) greater than 25 percent calories from total sugars; (iv) greater than 480 mg sodium per serving for non-meal items or greater than 600 mg per serving for meal items; and (v) less than 1.25g fiber per serving. Of the products sampled, 84 percent were allegedly “unhealthful and did not meet one or more nutrient criteria” derived from the U.S. Dietary Guidelines and the National Academies of Science. The report also…
