Citing stakeholder concerns over insufficient time to develop meaningful submissions, the U.S. Food and Drug Administration (FDA) has extended by 90 days the period in which to submit comments about the agency’s risk assessment titled, “Multicriteria-Based Ranking Model for Risk Management of Animal Drug Residues in Milk and Milk Products.” FDA seeks suggestions for improving the specific criteria, scoring and weighting scheme; selection of animal drugs evaluated; and transparency of the risk assessment. Electronic or written submissions are now due by October 27, 2015. See Federal Register, July 30, 2015. Issue 573
Tag Archives milk
French restaurateurs and food critics are calling for new food-labeling rules after a documentary airing on France 2 reported that some of the country’s food manufacturers have been using vegetable fat-based substitutes for fresh milk when producing cheese products. In “Artificial Cheese on Your Plate” (“Du Faux Fromage Dans Votre Assiette”), cheese producers are reportedly shown stocking bags of processed cheese made with water, vegetable fat, lactic acid, table salt, and potassium sorbate, while others are shown mixing genuine mozzarella with cheese made without milk to create a popular substitute known as “50-50.” Many of the cheese substitutes also contain palm oil. A nutritionist told the documentary producers that the cheese substitutes lack the positive qualities of real cheese because they contain saturated fat without providing calcium as well. See The Daily Telegraph, June 14, 2015. Issue 569
The General Court of the European Union has upheld a ruling that pomazánkové máslo, a product primarily marketed in the Czech Republic, cannot be labeled as “butter” under the single common market organization (CMO) regulation. Czech Republic v. European Commission, No. T-51/14 (Gen. Ct., order entered May 12, 2015). The product, a spread used in similar ways to butter, has a minimum fat content of 31 percent by weight, a minimum dry nonfat milk-material content of 42 percent, and a water content of up to 58 percent. The court ruled that the product does not meet the regulation’s standards, which require between 80 and 90 percent of milk-fat content, a maximum water content of 16 percent and a maximum dry material content of 2 percent. Further, the court ruled, the Czech Republic cannot circumvent the provisions of the single CMO regulation by claiming to be exempt if the product is…
A consumer has filed a putative class action in New York federal court against Blue Diamond Growers alleging that the company deceptively labels its Almond Breeze Almond Milk as “All Natural” despite containing potassium citrate, Vitamin A Palmitate, Vitamin D2, and D-Alpha-Tocopherol. Harlam v. Blue Diamond Growers, No. 15-877 (E.D.N.Y., filed February 19, 2015). The plaintiff alleges that 18 varieties of Blue Diamond almond milk contain the ingredients at issue, which she asserts are artificial or synthetic and, as a result, reasonable consumers would not expect to find them in products labeled as natural. “The [U.S. Food and Drug Administration] considers use of the term ‘natural’ on a food label to be truthful and non-misleading when ‘nothing artificial or synthetic . . . has been included in, or has been added to, a food that would not normally be expected to be in the food,’” she argues. Alleging unjust enrichment, breach…
A California appeals court has affirmed a lower court’s ruling dismissing a putative class action alleging that Safeway misbranded its Lucerne-brand of Greek yogurt because U.S. Food and Drug Administration (FDA) regulations prohibit the use of “milk protein concentrate” (MPC) in foods labeled as yogurt. Tamas v. Safeway, Inc., No. RIC1206341 (Cal. Ct. App., 4th Dist., Div. 3, order entered February 23, 2015). The plaintiff argued that a 1981 FDA regulation determining yogurt’s “Standard of Identity” (SOI) dictated what ingredients are allowable in products sold as yogurt despite the agency’s stay of the regulation soon after it was issued. FDA promised to schedule a public hearing on the regulation but, as of January 2009, “due to competing priorities and limited resources, FDA has not held a public hearing to resolve these issues and the effective date for these provisions remains stayed. Therefore, these provisions were never in effect. Consequently, cultured milk…
A Florida federal court has denied the state’s motion to dismiss a First Amendment lawsuit challenging regulations that require products labeled as “skim milk” to contain the same amount of vitamin A as whole milk. Ocheesee Creamery, LLC v. Putnam, No. 14-621 (N.D. Fla., order entered February 7, 2015). Because the process of skimming cream from milk removes much of the vitamin A content, the regulation requires skim milk to contain added vitamin A to bear the “skim milk” label; otherwise, it must be labeled as “imitation milk product.” Ocheesee Creamery’s November 2014 complaint claimed that by refusing to allow the company to sell its pasteurized skim milk with a “skim milk” label unless it added vitamin A—which the creamery views as tainting its “all-natural” products—Florida is censoring its use of the phrase “skim milk.” In its motion to dismiss, the state argued that the creamery had no standing and failed…
The U.S. Food and Drug Administration (FDA) has issued the results of a study finding that dark chocolate products may contain milk that is not declared on other labels. According to a February 11, 2015, consumer update, the agency tested dark chocolate bars for the presence of milk after dividing them into categories based on their labeling: (i) those that included precautionary statements such as “may contain milk” or “may contain traces of milk”; (ii) those labeled “dairy-free” or “allergen-free”; (iii) those that made no mention of milk on the label; and (iv) those with inconsistent labels—for example, a “vegan” product with a label indicating the possible presence of milk traces. The results evidently identified milk in (i) two of the 17 dark chocolates labeled “dairy-free” or “allergen-free”; (ii) 55 of the 93 products that gave no clear indication of the presence of milk in the products; and (iii) all…
A group of consumers has filed a putative class action against Cytosport Inc., maker of Muscle Milk, alleging that its powdered and ready-to-drink protein supplements do not contain the ingredients and characteristics advertised on its packaging. Clay v. Cytosport Inc., 15-165 (S.D. Cal., filed January 23, 2015). The plaintiffs argue that independent scientific testing shows that Muscle Milk products contain substantially less protein than the amount represented in the Nutrition Facts panel. They also allege that Muscle Milk labels list L-glutamine amino acids separately from the protein content to falsely imply that the products have additional L-glutamine beyond the content inherent in the protein mix. The complaint further argues that Muscle Milk labels cannot feature the word “lean” because the product does not contain less fat than its competitors. Alleging deceptive advertising, misrepresentation and breach of warranties, the putative class seeks certification, damages, an injunction, and attorney’s fees. Issue…
The U.S. Department of Agriculture’s Office of the Under Secretary for Food Safety and the Food and Drug Administration have announced a February 17, 2015, public meeting in College Park, Maryland, to discuss draft U.S. positions for consideration during the 47th Session of the Codex Committee on Food Additives slated for March 23-27 in Xi’an, China. Agenda items at the February meeting include (i) provisions of food category 14.2.3 “grape wines” and its sub-categories; (ii) potentially replacing Note 161 with an alternative regarding provisions for sweeteners; (iii) the commercial use of potassium diacetate; and (iv) a proposal revising food category 01.1 “milk and dairy based drinks” and its sub-categories. See Federal Register, January 14, 2015. Issue 551
Shook, Hardy & Bacon Agribusiness & Food Safety Partner Jim Muehlberger and Associate Jara Settles discuss the modern consumer protection landscape in a January 2, 2015, expert analysis published in Law360. Noting that food lawsuits “tend to garner significant notoriety,” the authors focus on recent litigation against Whole Foods Market Inc. alleging that the health-food purveyor “benefited from misleading labeling claims on almond milk,” which a third-party certified as free of ingredients made with genetically modified organisms (GMOs). Richard v. Whole Foods Mkt. Cal. Inc., No. BC563304 (Cal. Super. Ct., Los Angeles Cty., filed Nov. 7, 2014). “In a long line of consumer protection putative class actions aimed at food companies, Richard is somewhat unique in targeting a retailer,” explain Muehlberger and Settles. “In most situations, plaintiffs have targeted the manufacturers of food and beverage products they deem to be improperly labeled… As a retailer, Whole Foods likely had no hand in…
