A federal court in California has denied a walnut producer’s request to dismiss claims alleging that the company falsely advertises its products by asserting that the omega-3 in walnuts has certain health benefits. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., filed September 3, 2010) (unpublished). Alleging violations of California consumer protection laws, the plaintiff claims that the “statements are misleading because the Shelled Walnut products do not provide the health benefits claimed on the package labels.” The defendant argued that the plaintiff’s claims were preempted by the Federal Food, Drug, and Cosmetic Act and Nutrition Labeling and Education Act. The court disagreed, finding neither express nor implied preemption. According to the court, the claims either did not fall within the scope of federal law or state law imposed identical requirements, which are allowed under federal law.
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Finding the plaintiffs’ state-law claims preempted, a federal court in California has dismissed a putative class action alleging that the Kroger Co. falsely labeled its margarine and graham crackers as “0g Trans Fat per serving” and “a Cholesterol Free Food,” when they actually contain various hydrogenated oils. Red v. The Kroger Co., No. 10-01025 (C.D. Cal., decided September 2, 2010). According to the court, the Food and Drug Administration has promulgated specific regulations on the use of these terms, and because the products at issue comply with the requirements under which the terms can be used, the plaintiffs’ claims are expressly preempted under the National Labeling and Education Act of 1990. In the court’s words, “Plaintiffs cannot escape the fact that they seek to enjoin exactly what federal law expressly permits.” Alleging the violation of California consumer protection statues, the plaintiffs had sought an order compelling the defendant to (i) cease…
The U.K. Food Standards Agency (FSA) has announced that as of September 1, 2010, the agency handed over several responsibilities to the departments of Health (DH) and Environmental, Food and Rural Affairs (Defra). Under the restructuring—which does not currently apply to operations to Scotland, Wales and Northern Ireland—FSA in England will continue to handle the following safety aspects of food labeling: (i) “expert scientific advice on the food safety aspects of date marking”; (ii) “assessment and labeling of ingredients/foods with food safety implications (e.g. allergens, glycols, high caffeine, high glycyrrhizinic acid)”; (iii) “food safety aspects of organic food and of foods controlled by compositional standards”; (iv) “treatments and conditions of use with food safety implications (e.g. quick frozen foods, raw drinking milk and pasteurisation, food contact materials)”; (v) “GM and novel foods (including use of nanotechnology)”; (vi) “animal feed, including Codex Intergovernmental Task Force on Animal Feeding”; (vii) “food safety…
The Food and Drug Administration (FDA) has released draft and final guidance to assist restaurateurs and vending machine operators in implementing the labeling provisions set out in section 4205 of the Patient Protection and Affordable Care Act of 2010. The Act requires food retail establishments with 20 or more locations to post the calorie content for standard items on menus and menu boards; provide additional nutrition information in writing; and post calorie information for self-serve items and foods on display. The draft document offers proposed guidance on the execution of these standards, while the final explains the impact of the federal measure on state and local laws. According to an August 24, 2010, FDA press release, the agency “realizes that industry may need additional information and time to comply with the new provisions, and that the agency expects to refrain from enforcement action for a time period that will be provided…
The Food and Drug Administration (FDA) has announced two public meetings to consider the labeling of food derived from genetically engineered (GE) salmon. During the first meeting slated for September 19-20, 2010, the Veterinary Medicine Advisory Committee will address general scientific issues surrounding GE animals, statutory and regulatory constraints, and “a new animal drug application (NADA) concerning AquAdvantage salmon produced by AquaBounty Technologies, Inc.,” which has inserted Chinook and ocean pout genes into Atlantic salmon to accelerate maturation. In addition, FDA has called a September 21, 2010, public hearing to explain “the relevant legal principles for food labeling and to solicit information and views from interested persons on the application of these principles to food derived from AquAdvantage Salmon.” FDA has specifically invited participants to consider the following: (i) “Which facts about the AquAdvantage Salmon seem most pertinent for FDA’s consideration of whether there are any ‘material’ differences between foods…
A putative class action has been filed against the maker of POM Wonderful® pomegranate (PWP) juice in a Florida state court, alleging that the company is misleading consumers by marketing its product “as having special health benefits, including but not limited to, the prevention, mitigation, and or treatment of the following: (a) atherosclerosis; (b) Blood Flow/Pressure; (c) Prostate Cancer; (d) Erectile Function; (e) cardiovascular disease; (f) Reduce LDL cholesterol; (g) and other age related medical conditions.” Giles v. POM Wonderful, LLC, No. 10-32192 (Fla. Cir. Ct., Broward Cty., filed August 6, 2010). Seeking to represent a statewide class of consumers, the plaintiff claims, “In sum, the message is drink PWP and it will keep you young forever.” According to the complaint, the company has no reasonable basis for making its health-related marketing claims and has, in fact, been warned by the Food and Drug Administration that the product’s labeling directly…
A U.S. magistrate judge in New Jersey has issued an order staying a case that alleges “natural” labeling for Snapple beverages is misleading because the product contains high-fructose corn syrup (HFCS), which plaintiffs contend is not an all-natural ingredient. Holk v. Snapple Beverage Corp., No. 07-3018 (D.N.J., order entered August 10, 2010). The parties drew the court’s attention to a stay issued in similar litigation involving Arizona Iced Tea® beverages. Additional information about that case appears in Issue 356 of this Update. The stay will remain in effect for six months, pending a Food and Drug Administration (FDA) review of the matter. “That time period may be extended for good cause shown, in the event the FDA shows a willingness to consider this issue but needs more time to do so. If, on the other hand, the FDA declines to consider the issue, counsel are directed to notify the Court promptly…
The Food and Drug Administration (FDA) has issued a notice specifying the terms and conditions for voluntary compliance with section 4205 of the Affordable Care Act of 2010, which established nutritional labeling requirements for chain restaurants with more than 20 locations and vending machine operators with more than 20 machines. Other retailers not covered by section 4205 can elect to become subject to the federal law by registering biannually with FDA. Restaurants and similar establishments that voluntarily opt in “will no longer be subject to State or local nutritional labeling requirements unless those requirements are identical to Federal requirements,” according to the agency. Vending machine operators are already covered by state and local regulations identical to federal requirements, although Congress has “expressly provided” that they may still undertake voluntary registration. The agency will accept comments until October 21, 2010. See Federal Register, July 23, 2010.
A federal court in New Jersey has reportedly stayed for six months consumer fraud litigation against the company that makes Arizona Iced Tea® beverages and has asked the Food and Drug Administration (FDA) to determine whether high-fructose corn syrup (HFCS) qualifies as a “natural” ingredient. Coyle v. Hornell Brewing Co., No. 08-2797 (D.N.J., stay order entered June 15, 2010). Claiming that these beverages are deceptively marketed as “100% Natural” despite containing HFCS, the plaintiff alleges violation of the New Jersey Consumer Fraud Act, unjust enrichment and common-law restitution, and breach of express and implied warranties. The court issued the stay rather than dismiss the putative class action outright as requested by the defendants on the basis of the doctrine of primary jurisdiction. According to a news source, the court acknowledged that “categorizing HFCS as either natural or artificial for the purpose of food and beverage labeling does not fall within…
The Food and Drug Administration (FDA) has submitted to the Office of Management and Budget a proposed information collection related to food labeling regulations. According to FDA, these regulations govern the submission of food labeling petitions and require food producers to: (i) disclose specific information about themselves or their products on labeling; (ii) retain records establishing the basis for the information contained on labeling; and (iii) provide these records to regulatory officials. The information collection notice provides estimated annual reporting and recording keeping burdens for these regulations. FDA has noted that it is no longer combining these burden hour estimates with those in information collections titled, “Food Labeling: Nutritional Labeling of Dietary Supplements on a ‘Per Day’ Basis” and “Food Labeling: Trans Fatty Acids in Nutrition Labeling,” although “[s]uch consolidation may occur in the future.” The agency will accept comments until August 16, 2010. See Federal Register, July 15, 2010.
