A New York resident has sued Campbell Soup Co. alleging that its “Less Sodium” and “Healthy Request” tomato soups are falsely advertised because they contain the same levels of salt and fat as the company’s “regular” tomato soup. Smajlaj v. Campbell Soup Co., No. 10-1332 D.N.J., filed March 12, 2010). Seeking to certify a nationwide class of soup purchasers, the plaintiff alleges that while the company’s “25% Less Sodium” tomato soup contains 480 mg of sodium per serving, so does the company’s “regular” tomato soup. She also alleges that “Healthy Request” soup, advertised as “low in fat and cholesterol,” contains 1.5 grams of fat per serving, while the “regular” tomato soup has 0 grams of fat per serving. According to the complaint, the company sells the “Less Sodium” and “Healthy Request” soups “for a substantially higher price—up to at least 50% higher,” than the “regular” soup. The plaintiff alleges violation of…
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A New York resident has filed a false-advertising class action in a California federal court against the companies that make certain ice cream products labeled with the statement “0g trans fat.” Carrea v. Dreyer’s Grand Ice Cream, No. 10-1044 (N.D. Cal., filed March 11, 2010). Seeking to certify a nationwide class of ice cream purchasers, the plaintiff alleges false advertising under the Lanham Act and violations of the California Consumers Legal Remedy Act and the misleading and deceptive advertising provisions of the state Business and Professions Code. The plaintiff seeks a declaration that the defendants have committed the alleged violations, restitution, disgorgement, compensatory and punitive damages, interest, and costs. He also asks the court to order defendants to destroy all misleading and deceptive advertising materials and products. According to the complaint, the plaintiff relied on the alleged misrepresentations to conclude “that the Products were in fact healthy and relied upon…
FDA Commissioner Margaret Hamburg offered her views on how the agency will move forward on food safety and labeling issues during a “Food Summit” sponsored by The Atlantic magazine at the Newseum in Washington, D.C., March 4, 2010. Hamburg stated that she plans to focus on two critical aspects of food policy: safety and how to make it easier for consumers to make more nutritious choices and reduce the risk of disease. She pointed to three converging factors that affect food safety. First, she stated that both consumers and the industry support reform measures and want a system focused on prevention, where everyone in the supply chain is held accountable and imports are required to meet U.S. standards. Second, she noted that current U.S. food safety legislation (H.R. 2749—passed by the House in July 2009 and expected to be taken up by the Senate this spring) would mandate a shift from reaction…
With the recent uptick in consumer fraud class actions targeting food and beverage labels, and opinions like the Ninth Circuit’s in Williams v. Gerber, 552 F.3d 934 (2009) (reinstating a proposed class action and finding that consumers should not be “expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box”), the findings of a recent Food and Drug Administration health and diet survey are good news to manufacturers of food and beverage products. On March 2, 2010, FDA released the results of a nationwide survey conducted in 2008 on consumer behaviors, knowledge, attitudes, and beliefs about health and diet. Specifically included were questions about consumer use of packaging labels. Fifty-four percent of consumers “often” read the food label the first time they buy a product. Of these, two-thirds do so to…
Taking aim at companies that make (i) nutrient content claims on foods and beverages intended for children younger than age 2, (ii) 0 gram trans fat claims on products high in saturated fats, and (iii) health-related claims, such as the treatment or mitigation of disease, the Food and Drug Administration (FDA) has issued warning letters to 17 companies and an open letter to industry indicating that it will crack down on false or misleading labeling and marketing claims. Among the targeted companies are Dreyer’s Ice Cream, Inc. (ice cream—no trans fat), Beech-Nut Nutrition Corp. (baby food—nutrient claims for children younger than age 2), Nestle (Juicy Juice products—implied 100 percent juice for juice blends with added flavors), Pompeian, Inc. (olive oil—treat, prevent and cure diseases), Redco Foods (green tea—antioxidants effective in the prevention of cardiovascular disease), and Diamond Food, Inc. (shelled walnuts—omega-3 claims about treating, preventing or curing diseases). Some of the…
Two public health advocates have penned an article in the February 23, 2010, edition of the Journal of the American Medical Association (JAMA) that calls for an end to all front-of-package (FOP) food labels. According to New York University Professor Marion Nestle and Children’s Hospital Boston Obesity Program Director David Ludwig, the food industry has historically used loopholes in labeling laws to make tenuous health claims and develop “self endorsement labeling systems” in an effort to sell more products. The authors note that although the Food and Drug Administration (FDA) “intends to examine the entire issue of front-of-package labeling,” the agency continues to maintain that “point of purchase labeling . . . can be an effective way of promoting informed food choices and helping consumers construct healthier diets.” Nestle and Ludwig, however, remain skeptical that these systems will not be co-opted by food and beverage manufacturers seeking to promote sales.…
The American Academy of Pediatrics (AAP) has issued a policy statement calling for warning labels on foods that pose a high risk of choking. The medical organization has identified hot dogs as “the food most commonly associated with fatal choking among children,” as well as other high-risk foods that include “hard candy, peanuts/ nuts, seeds, whole grapes, raw carrots, apples, popcorn, chunks of peanut butter, marshmallows, chewing gum, and sausages.” According to a February 22, 2010, press release, the policy contains “recommendations for government agencies, manufacturers, parents, teachers, child care workers and health care professionals to help prevent choking among children.” In addition to the warning labels, AAP has urged these groups to consider strategies for (i) recalling food products that pose a significant choking hazard, (ii) establishing “a nationwide food-related choking-incident surveillance and reporting system,” (iii) designing new food and redesigning existing food to minimize choking risk, and (iv)…
A court in Carcassonne, France, has reportedly found French winemakers and traders guilty of deliberately and repeatedly mislabeling wine as a more expensive grape variety to get a better price from E. & J. Gallo under its Red Bicyclette® brand. French customs officials apparently discovered the swindle when they found that the amount of “pinot noir” sold to Gallo far exceeded what the region produced. According to a news source, the scam more than doubled the miscreants’ profits, which totaled some €7 million for 18 million bottles. The fines imposed ranged from US$2,050 to US$247,050, and the suspended jail sentences ranged from one to six months. The judge was quoted as saying, “The scale of the fraud caused severe damage for the wines of the Languedoc for which the United States is an important outlet.” A defense attorney reportedly said that no American customers complained about the fraud. See BBC News,…
This article discusses the Food and Drug Administration’s (FDA’s) renewed interest in revising its approach to food serving sizes as front-of-package labeling gains traction in the marketplace. According to Times writer William Neuman, “The push to re-evaluate serving size comes as the F.D.A. is considering ways to better convey nutrition facts to hurried consumers, in particular by posting key information on the front of packages. Officials say such labeling will be voluntary, but the agency must set rules to prevent companies from highlighting the good things about their products, like a lack of trans fats, while ignoring the bad, like a surfeit of unhealthy saturated fats.” Created in the 1990s to help shoppers “compare the nutritional values of different products,” serving sizes are based on eating habit surveys taken during the 1970s and 1980s. Neuman claims, however, that while many people “might eat two or three times” the serving size…
The Committee on Examination of Front-of-Package Nutrition Rating Systems and Symbols of the Institute of Medicine held a meeting on February 2, 2010. The committee was established at the request of the Food & Drug Administration (FDA) and Centers for Disease Control and Prevention (CDC) to undertake a review of front-of-package (FoP) nutrition rating systems and symbols. The purpose of the meeting was to gather information that might help the committee conduct its study. Among those appearing during the meeting were representatives of the FDA, CDC and U.S. Department of Agriculture. FDA staff indicated that in March 2010 the agency plans to issue a proposed rule that will define the scope of what constitutes a “dietary guidance statement” and provide criteria for the use of these statements. A 90-day comment period will follow its publication in the Federal Register. FDA will also be issuing two guidance documents, one of which will…
