A federal court in California has denied the defendant’s motion to dismiss in a putative class action alleging false and misleading advertising for defendant’s “Tropicana Pure 100% Juice Pomegranate Blueberry Flavored Blend of 5 Juices from Concentrate with other Natural Flavors.” Zupnik v. Tropicana Prods., Inc., No. 09-6130 (C.D. Cal., decided February 1, 2010). Plaintiffs allege that the product label, which emphasizes the pomegranate and blueberry components of the product by image and size of type constitutes false or misleading advertising in violation of several state statutes. According to the complaint, consumers are misled into believing the juice is primarily pomegranate and blueberry juice when it is, in fact, mostly pear juice. Tropicana argued that the plaintiff lacked standing, her claims were expressly preempted by federal law, and they were not pleaded with particularity. The court disagreed, finding that because the plaintiff claimed she did not get what she paid…
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The state government of Western Australia (WA) recently announced its decisionto allow the cultivation of genetically modified (GM) canola within the region as of this year. State Agriculture and Food Minister Terry Redman reportedly signed the exemption order under the Genetically Modified Crops Free Areas Act of 2003, thus permitting WA farmers to grow GM canola varieties approved by the Office of the Gene Technology Regulator. Redman noted that, according to a government report, commercial trials have proven the feasibility of segregating GM canola “from paddock to port,” a requirement of the Act meant to preserve the state’s “markets and reputation by preventing the introduction of GM crops before adequate segregation and identity preservation systems are in place.” As WA Premier Colin Barnett stated, “This decision brings WA in line with other major grain growing states in New South Wales and Victoria, where growers have been able to grow GM canola…
The Institute of Medicine (IOM) has announced a February 2, 2010, public meeting in Washington, D.C., to solicit government perspectives on front-of-package nutrition labeling systems. The IOM Committee on Examination of Front-of-Package Nutrition Rating Systems and Symbols has invited input from various government agencies and study sponsors, including the Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and the U.S. Department of Agriculture. Created in response to a congressional mandate, the committee is working on behalf of CDC and FDA to review “the elements of the nutrition rating criteria and science underlying the front-of package systems.” In particular, the group is gathering information on (i) “front-of-package systems being used by manufacturers, supermarkets, health organizations, and governments in the United States and abroad”; (ii) “the purpose and overall merits of front-label nutrition icons”; (iii) “the criteria underlying the systems and . . . their scientific basis”; and (iv)…
A California court of appeal recently determined that the Federal Meat Inspection Act (FMIA) preempts point-of-sale or other warning labels on meat products under Proposition 65 (Prop. 65). Am. Meat Inst. v. Leeman, No. D053325 (Cal. Ct. App., decided December 22, 2009). In 2004, Whitney Leeman notified a number of meat processors and retailers in California that she intended to file a citizen suit against them alleging violations of Prop. 65 for their failure to provide warnings that their beef products contained dioxins and PCBs, chemicals known to the state to cause cancer or reproductive toxicity. The companies’ trade association filed a complaint seeking declaratory relief, and the trial court, finding implied, but not express, federal preemption, granted the association’s motion for summary judgment. The court of appeal focused for the most part on defining “labeling,” because Leeman argued that point-of-sale warnings do not constitute labeling under the FMIA, which contains…
The Ninth Circuit Court of Appeals has determined that pet food mislabeling claims should not be certified as a class action because the named plaintiff failed to satisfy the predominance requirement of Federal Rule of Civil Procedure 23(b)(3). Kennedy v. Natural Balance Pet Foods, Inc., No. 08-56378 (9th Cir., decided January 6, 2010) (not for publication). The plaintiff alleged that dog and cat food products labeled with “Made in the USA” were mislabeled because they contained ingredients from China and sought to certify a class of individuals from a number of states. While the court upheld the district court’s class certification ruling because the plaintiff failed to show which consumer protection law would apply to the class claims, it reversed the court’s order dismissing the action for lack of subject-matter jurisdiction. According to the court, the case, which had been removed from state to federal court, should have been returned…
The Center for Science in the Public Interest (CSPI) has prepared a report for the Food and Drug Administration (FDA) that purportedly catalogs “some of the most egregious examples of false claims, ingredient obfuscations, and other labeling shenanigans” on the part of food manufacturers that make nutritional claims about their products. Titled “Food Labeling Chaos,” the report discusses health claims made by manufacturers of breakfast cereals, beverages, snacks, and baby food. CSPI praises FDA for taking more aggressive action under the Obama administration against food manufacturers that purportedly mislabel their products, but still calls for a significant overhaul of the nation’s food labeling regulations.
In a letter recently posted to its website, the Food and Drug Administration (FDA) has warned Nestlé USA that its Juicy Juice® products are misbranded because their labels include “unauthorized nutrient content claims.” According to FDA, the product labels include the claim “Helps support brain development . . . In children under two years old” and also states “no sugar added.” Under FDA regulations, these statements cannot be made on products for children younger than age 2. FDA also states that other Nestlé products have misleading labels because they imply that they contain 100 percent natural fruit juice when they actually contain “Flavored juice blend from concentrate with other natural flavors & added ingredients.” In a separate letter, FDA warns that the company’s BOOST Kid Essentials Nutritionally Complete Drinks® are also misbranded because they are promoted as a “medical food” to address conditions such as “failure to thrive” and “pre/post…
Yale University researchers, including Kelly Brownell, have published a study that concludes “Calorie labels on restaurant menus impacted food choices and intake; adding a recommended daily caloric requirement label increased this effect, suggesting menu label legislation should require such a label.” Christina Roberto, et al., “Evaluating the Impact of Menu Labeling on Food Choices and Intake,” American Journal of Public Health, December 17, 2009. The study evaluated the dinner selections made by some 300 participants randomly assigned to a menu (i) without calorie labels, (ii) with calorie labels, or (iii) with calorie labels and a label including the recommended daily caloric intake for an average adult. According to the researchers, those participants in the latter two categories “ordered fewer calories than those in the no calorie labels condition.” The participants in the second group did, however, consume more calories after the study dinner than either of the other groups. Combining…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has published a supplemental proposed rule that would “require nutrition labeling of the major cuts of single-ingredient, raw meat and poultry products, unless an exemption applies.” FSIS proposed a similar rule in January 2001, and this notice responds to public comments already submitted and “explains how the Agency intends to proceed with a final rule.” Under the proposal, the nutrition facts label would contain information about serving size, calorie content, fat, saturated fat, cholesterol, sodium, carbohydrates, fiber, protein, and vitamins. Additional public comments are solicited and must be submitted by February 16, 2010.
The Center for Science in the Public Interest (CSPI) has issued a proposal to improve packaged food nutrition labels. Among other matters, the proposal calls for more emphasis to be placed on calories, added sugars, saturated and trans fats, and sodium. If any of the latter ingredients exceed 20 percent of the recommended daily amount, CSPI calls for it to be listed in red and flagged as “high.” CSPI’s proposed nutrition label would also list ingredients in regular type separated by bullets, instead of in all capital letters, which the organization contends is hard to read. According to CSPI, the proposal, which compares an existing label with its recommended label, “exposes some of the tricks that occur on the front of the label, and unveils makeovers of the Nutrition Facts panel and ingredient lists to last for the next 15 years.” CSPI Executive Director Michael Jacobson was quoted as saying, “Foot…
