Public Health attorney and author Michele Simon has issued a report titled “Whitewashed: How Industry and Government Promote Dairy Junk Foods.” According to Simon, dairy foods have gotten “a pass” as the public health community focuses on “obvious culprits such as soft drinks and fast food” to address the nation’s “public health epidemic due to poor diet.” The report explains how plain liquid milk consumption has fallen in the United States and been replaced by its consumption as flavored milk, with cereal or in a drink. Simon claims that today half of the milk supply makes 9 billion pounds of cheese and 1.5 billion gallons of frozen desserts, such as ice cream, and 11 percent of all sugar is used in dairy product production. She refers to these products as “dairy junk foods” loaded with saturated fat, sugar and salt. The report focuses on the government’s collection of industry fees…
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Camel’s milk and its associated products may be the next “super food” category, according to USA Today. Several U.S. farms with breeding camels have reportedly adopted camel-milking programs in seven states, with new programs set to open soon in seven more. Scientific studies show that camel milk has higher levels of several nutrients—including protein, potassium, magnesium, B vitamins, iron, copper, manganese, vitamin C, and zinc—as well as lower cholesterol than cow’s milk. The process of milking the camels is apparently easier than milking cows, as dromedary (single-humped) and Bactrian (double-humped) camels are taller and do not require seating or crouching while milking them, but they produce less milk than cows. One camel farmer uses a 15-second flash pasteurization process that reportedly retains nutrients more efficiently, but the pasteurization for camel milk has yet to be standardized. See USA Today, June 8, 2014. Issue 526
Two consumers have filed a putative class action against dairy cooperative Darigold Inc., a subsidiary of Northwest Dairy Association, for false advertising and fraud by concealment, alleging that the company misrepresented the conditions in which its milk is produced. Ruiz v. Darigold Inc., No. 14-2054 (N.D. Cal., May 5, 2014). Yesenia Ruiz and Fernando Dorantes argue that they would not have purchased Darigold’s products if they had known about the purportedly poor conditions in which its employees work and its cows are milked. According to the complaint, Darigold employees are denied drinkable water, break periods and lunch rooms, and some of its cows are sick and injured but are milked anyway. The plaintiffs also assert claims under California’s Unfair Competition Law; the unjust enrichment laws of California, Washington and Oregon; Washington’s Consumer Protection Act; and Oregon’s Unlawful Trade Practices Act. Issue 523
A federal magistrate in Florida has decided that the opinion proffered by the plaintiffs’ expert in litigation challenging “brain health” marketing claims for algal-derived DHA Omega-3 fortified milk products is unreliable, thus granting the defendant’s motion to exclude it. In re Horizon Organic Milk Plus DHA Omega-3 Mktg. & Sales Practices Litig., MDL No. 12-2324 (S.D. Fla., order entered April 28, 2014). The ruling affects claims brought by consumers in six states alleging that the defendant violated state laws by falsely claiming that the DHA in its products “Supports Brain Health” and “Supports a Healthy Brain,” and that “competent, scientific evidence shows that these claims are false.” While the court found that most of the defendant’s arguments in support of exclusion went to the weight of the testimony rather than its admissibility, it agreed that the expert failed to show how small studies involving 49 women and 658 children in the…
A federal court in New York has denied in part and granted in part the motion to dismiss filed by the defendants to consumer-fraud litigation claiming that their Smart Balance® Fat-Free milk products with added omega-3s are misbranded because they contain 1 gram of fat from the omega-3 oil blend ingredient. Koenig v. Boulder Brands, Inc., No. 13-1186 (S.D.N.Y., order entered January 31, 2014). The court determined that the state law-based claims were not preempted by federal food labeling laws, whether the claims involve the application of milk regulations as argued by the plaintiffs or combination product requirements as argued by the defendants. Among other things, the court refused to find the defendants’ “combination products” preemption theory tenable because (i) it was based on FDA compliance policy guides, “which constitute advisory opinions”; (ii) the defendants failed to cite any FDA policy or regulations directly addressing the milk products at issue…
A recent study has reportedly revealed that organic milk contains a healthier balance of omega-6 and omega-3 fatty acids compared with milk from cows raised on conventionally managed dairy farms. Benbrook, et al., “Organic Production Enhances Milk Nutritional Quality by Shifting Fatty Acid Composition: A United States–Wide, 18-Month Study,” PLOS One, December 9, 2013. The finding, writes New York Times writer Kenneth Chang, is the “most clear-cut instance of an organic food’s offering a nutritional advantage over its conventional counterpart,” as “studies looking at organic fruits and vegetables have been less conclusive.” According to the researchers, who note that the ratio of omega-6 to omega-3 fatty acids in the U.S. diet have risen to “nutritionally undesirable levels,” the healthier fatty acid profile of organic milk is likely a result of cows foraging on grass. By comparison, cows fed a corn-based diet apparently produce milk that contains higher levels of omega-6 fatty acids, which…
Citing the settlement of similar class claims in a Florida court and plausibility issues, a federal court in California has dismissed with prejudice a putative class action alleging that companies misbrand products with an evaporated cane juice (ECJ) designation and sell products not meeting the standard of identity for yogurt and milk, including soymilk and almond milk. Ang v. WhiteWave Foods Co., No. 13-1953 (N.D. Cal., decided December 10, 2013). According to the court, the California plaintiffs, who filed their complaint after the class action was filed in Florida, were members of the class, knew about that settlement and had an opportunity to, but did not, object to it. Thus, the court found their ECJ and yogurt claims barred by res judicata. As for claims that consumers are confused by use of the terms “soymilk,” “almond milk,” and “coconut milk” in the names of Silk® products, an alleged violation of…
A federal court in California has given preliminary approval to the settlement of a nationwide class alleging that Cytosport, Inc. misleads consumers by representing that its Muscle Milk® Ready-to-Drink products are healthy and nutritious when they actually contain the same amount of calories and almost as much fat as a doughnut. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., order entered November 18, 2013). Additional information about the settlement and litigation appear in Issue 475 of this Update. The court has scheduled a May 15, 2014, final approval hearing.
A Florida-based import-export company has filed for Chapter 7 protection in bankruptcy court, listing more than $204 million in liabilities from litigation over its role in the import from China of powdered milk contaminated with melamine. In re Exim Brickell, LLC, No. 13-28502 (U.S. Bankruptcy Ct., S.D. Fla., filed August 3, 2013). Exim Brickell, LLC declared $300 in office furniture as its only asset. According to a news source, the 2008 tainted Chinese milk scandal, which affected hundreds of thousands of children in that country and killed six, resulted n verdicts and legal fees against the company as a result of litigation involving a Venezuelan company that recently won an appeal in their breach of contract dispute. See Law360, August 7, 2013. In a related development, a new milk contamination scandal has developed in China over whey protein concentrate potentially contaminated with the C. botulinum bacterium. The dairy farm near…
The Food and Drug Administration (FDA) has reportedly received “more than 30,000 comments” in response to its request for information about a petition filed by dairy-industry groups asking the agency to drop special labeling requirements for flavored milks that contain artificial sweeteners such as aspartame. The International Dairy Foods Association (IDFA) and the National Milk Producers Federation (NMPF) have asked FDA “to amend the standard of identity for flavored milk and 17 other dairy products (including nonfat dry milk, heavy cream, eggnog, half-and-half and sour cream) so that nonnutritive sweeteners are among the standard ingredients,” thus exempting the products from having to make nutrient content claims such as “reduced calorie” in a more prominent location. “If we granted the petition, a carton of chocolate milk made with nonnutritive sweeteners would simply say ‘chocolate milk,’ the same as a carton made with nutritive sweeteners, such as sugar,” said FDA Food Labeling…
