The U.K. Advertising Standards Authority (ASA) has declined to uphold five complaints claiming that Nestlé UK Ltd.’s TV advertisements for Nesquik chocolate milkshake “encouraged poor nutritional habits by suggesting the product was suitable to give to children for breakfast on a daily basis.” According to ASA, the complaints described the product as high in sugar and thereby unsuitable for daily consumption. But Nestlé countered that a typical serving of Nesquik milkshake could not “be described as being ‘high’ in sugar” as “46% of total sugar in the product, as consumed, was attributed to the naturally occurring lactose found in milk, and not to the Nesquik product.” In addition, Nestlé explained, the sugar that could be attributed to the product still met World Health Organization guidance stating that NonMilk Extrinsic Sugars should contribute less than 10 percent daily energy to children’s diets. “Nestlé also said the new EU Pledge nutrient profiling criteria…
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The company that makes the Muscle Milk® line of nutrition products has agreed to settle putative class claims that it misrepresented the products’ nutritional value. Delacruz v. CytoSport, Inc., No. 11-3532 (N.D. Cal., motion to approve settlement filed March 7, 2013). Details about the complaint appear in Issue 403 of this Update. A court order leaving just one issue in the case—an allegation that labeling claims of “healthy fats” in a Muscle Milk® product could deceive because a reasonable consumer would expect the product to contain unsaturated and not saturated fats—is summarized in Issue 436 of this Update. Under the proposed agreement, the company would pay the equivalent of $5.275 million for awards to the named plaintiff and class members, a cy pres award, injunctive relief, class notice and settlement administration costs, attorney’s fees and expenses, and products in kind. Claimants with proof of purchase would receive up to $30 each;…
The Food and Drug Administration (FDA) has announced that the International Dairy Foods Association (IDFA) and the National Milk Producers Federation (NMPF) have filed a petition requesting that the agency amend the standard of identity for milk and 17 other dairy products “to provide for the use of any safe and suitable sweetener as an optional ingredient.” FDA is seeking comments and other information by May 21, 2013. IDFA and NMPF have evidently asked FDA to amend the milk standard of identity to allow optional characterizing flavoring ingredients used in milk— such as chocolate—to be sweetened with any safe and suitable sweetener, including non-nutritive sweeteners such as aspartame. According to IDFA and NMPF, the proposed amendments “would promote more healthful eating practices and reduce childhood obesity by providing for lower-calorie flavored milk products.” In particular, the petitioners claim that lower-calorie flavored milk would assist “in meeting several initiatives aimed at…
The U.K. Food Standards Agency (FSA) will reportedly prosecute a department store for installing raw-milk vending machines at its flagship London location. According to a January 23, 2013, FSA press release, the agency has sought charges against Selfridges Retail Limited as “a person other than the occupier of a production holding or distributor” under Regulation 32 and Schedule 6 Paragraph (2)(1) of the Food Hygiene (England) Regulations. FSA has also included the farmer who supplied the milk as “an occupier of a production holding” under Regulation 32 and Schedule 6(2)(2). Westminster Magistrates Court has set the hearing date for February 6, 2013. The vending machines reportedly came to FSA’s attention in 2011, when the agency initiated an investigation of the retailer and demanded that the unpasteurized milk products carry a warning label. Under current regulations, farmers in England, Wales and Northern Ireland can sell raw cow’s milk directly to consumers…
A federal court in Minnesota has granted the motion for summary judgment filed by a company whose insurance carrier claimed it was not required to cover the company’s settlement of claims arising from a recall of instant oatmeal purportedly contaminated with instant milk produced at a facility where the Food and Drug Administration “detected insanitary conditions and salmonella.” The Netherlands Ins. Co. v. Main St. Ingredients, LLC, No. 11-533 (D. Minn., decided January 8, 2013). The company had supplied the instant milk to Malt-o-Meal which used it to make instant oatmeal. After the instant milk and downstream products such as the oatmeal were recalled, Malt-o-Meal sued both the supplier and the company that had produced the instant milk. While none of the supplier’s instant milk was found to contain Salmonella, the case ultimately settled for $1.4 million. The insurance company sued the supplier, Main Street Ingredients, for a declaration that…
According to a recent report published in the Proceedings of the National Academy of Sciences, scientists have successfully engineered a transgenic dairy cow that produces milk with decreased levels of β-lactoglobulin (BLG), a major allergen which is not present in human milk. Anower Jabed, et al., “Targeted microRNA expression in dairy cattle directs production of β-lactoglobulin-free, high-casein milk,” PNAS, October 2012. After testing their hypothesis in a mouse model, New Zealand researchers apparently used a technique called RNA interference to effectively silence the gene responsible for expressing the BLG protein in cow’s milk. The resulting transgenic calf reportedly yielded milk with “no detectable BLG protein” but “more than twice the level of the casein proteins that also normally occur in cow’s milk.” “People have long looked into reducing this enigmatic protein, or completely knocking it out, because there has been no definitive function able to be assigned to it. So, we developed…
The U.K. Advertising Standards Authority (ASA) has ruled that print and Web advertisements for Alpro (UK) Ltd.’s almond milk are not misleading. ASA received two complaints alleging that the advertisements misled consumers because the product contains only 2 percent almonds and because the ads featured images implying that almonds could be “milked.” Alpro countered, however, that “almond milk” is “commonly used as a descriptor for this type of product,” with “the two leading international branded varieties both [having] an almond content of 2%.” “They explained the product was made by processing roasted almonds into a creamy paste, which was then blended with spring water and other ingredients and nutrients, but that no additional flavorings were added to the product,” according to ASA. “They said the number of almonds used defined the texture and taste intensity of the product and that consumers liked the product with 2% roasted almonds, which equated…
The Ninth Circuit Court of Appeals has determined that the “filed rate doctrine” does not bar the state law-based claims of dairy farmers alleging that milk marketing cooperatives (handlers) provided erroneous reports to the federal government which relied on them to set a minimum price structure for raw milk sales; as a result, the farmers purportedly lost millions of dollars. Carlin v. DairyAmerica, Inc., No. 10-16448 (9th Cir., decided August 7, 2012). Each of the four named plaintiffs in this consolidated proceeding filed claims on behalf of a nationwide class alleging (i) negligent misrepresentation, negligent interference with prospective economic advantage and unjust enrichment, all under California common law; and (ii) violation of California’s Unfair Business Practices Law. The filed rate doctrine “‘is a judicial creation that arises from decisions interpreting federal statutes that give federal agencies exclusive jurisdiction to set rates for specified utilities, originally through rate-setting procedures involving the…
A company that supplies specialty ingredients such as vitamins, chemicals and carotenoids to food producers has sued one of its suppliers, alleging that the company was forced to recall from customers more than 33,000 pounds of chromium amino acid chelate after learning that it contained a milk allergen. DSM Nutritional Prods., LLC v. Triarco Indus., Inc., No. C1928-12 (N.J. Super Ct., Morris Cty., filed July 26, 2012). The plaintiff also allegedly reported the matter to the Food and Drug Administration through the Reportable Food Registry. According to the complaint, in 2009, the defendant completed a questionnaire designed to inform the plaintiff “of the existence of any allergens or their derivatives contained in the product” sold to the plaintiff. “Not until July 27, 2010,” however, “did Defendant correctly label the product as containing a hydrolyzed milk protein, thus advising [the plaintiff] that Defendant’s product contained a milk allergen.” Alleging breach of contract…
A nutritionist who published a study about the health effects of omega-3 fatty acids in the American Journal of Clinical Nutrition has objected to Dean Foods Co.’s decision to cite her work in marketing the health benefits of its Horizon organic milk fortified with docosahexaenoic acid (DHA). Penn State University Professor Penny Kris-Etherton apparently took issue with Horizon milk labels that used her paper to support a claim that “many Americans don’t get the recommended DHA from their everyday diet.” According to Kris-Etherton, however, her research did not establish an optimum level of DHA consumption for the average consumer. “It’s not right—it’s inaccurate,” she was quoted as saying. “It’s a marketing strategy to sell more of their milk.” Kris-Etherton’s concerns have evidently led Whole Foods Market Inc. to review its policy on DHA health claims and Dean Foods to consider voluntarily withdrawing the citation. “It’s appropriate to use published scientific studies…
