The Children’s Advertising Review Unit (CARU) has advised Kellogg Co. to revise the packaging for Fruit Flavored Snacks, recommending against statements that the product is “made with real fruit.” The front of the package featured cartoon characters and the statement “made with real fruit” superimposed on the image of an apple. The side panel clarified that the snacks are “made with equal to 20% fruit.” Based on a typical child’s interpretation of the message, CARU found that children may be confused because “although the fruit flavored snacks were made with fruit puree concentrate, at the end of the process, only a very small amount of actual fruit puree concentrate was included in each serving of the product.” In a statement, Kellogg indicated that it disagreed with CARU’s findings but would modify the language and remove the apple logo in deference to the self-regulatory process. Issue 614
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The U.S. Food and Drug Administration (FDA) has filed an opposition to a petition for a writ of mandamus seeking a response to several consumer groups’ petition to prohibit perchlorate, an additive currently approved for limited use in food packaging. Breast Cancer Fund v. FDA, No. 16-70878 (9th Cir., petition filed July 8, 2016). The groups’ petition urged the Ninth Circuit Court of Appeals to compel FDA to respond to their December 2014 food additive petition, arguing the agency was required to respond by June 2015. Details about the petition for a writ of mandamus filed by the groups—which include the Center for Environmental Health, Center for Food Safety, Center for Science in the Public Interest, Environmental Working Group and the Natural Resources Defense Council—appear in Issue 599 of this Update. FDA’s response first challenges the group’s standing to sue. “Even if petitioners could demonstrate that perchlorate poses some risk…
Diageo will reportedly provide nutritional information on its alcohol product packaging, beginning with Johnnie Walker® Red Label. Changes to Smithwick’s® and Guinness® packaging will follow. The global label will reportedly include the product’s alcohol by volume, serving size, calorie and sugar content and allergens, while the U.S. label will mimic the Nutrition Facts panel format regulated by the U.S. Food and Drug Administration. In a June 30, 2016, press release, a Diageo official said the change is “based on what consumers want,” noting, “Current labeling on most alcoholic beverages does not reflect how people consume alcohol and therefore does not allow consumers to understand how much alcohol is in their favorite drink or what is in their glass.” See Forbes, June 30, 2016. Issue 610
The Environmental Working Group (EWG) has launched what it describes as “the first easily, searchable database of nearly 16,000 processed food and drinks packaged in materials that may contain the hormone-disrupting chemical bisphenol A, or BPA.” According to EWG, the new database organizes information obtained from a food industry website into a list of products that users can search from EWG’s Food Scores application. “The industry website’s apparent main purpose is to help food companies supply warning signs to retailers,” states EWG in a June 17, 2016, press release. “It reveals that Americans are far more widely exposed than previously known to a hormone-disrupting industrial chemical that poses greatest risk to pregnant women, infants and children. But the website is a chaotic jumble––incomplete, inconsistent, poorly organized and hard to use.” EWG claims that its BPA database features 926 brands linked to 16,000 products, “including more than 8,000 soup, vegetable, sauce…
The U.S. Food and Drug Administration (FDA) will reconsider how “healthy” may be used on food packaging following the evaluation of a citizen petition filed by Kind LLC. FDA previously challenged Kind’s use of “healthy” on its nut bars, which contain more fat than permitted due to the inclusion of nuts, and Kind changed its packaging accordingly but filed a petition for reconsideration of the issue. The existing guidelines were created during the 1990s and reflect accepted standards of that time, including a preference for foods low in fat without regard to the nature of the fat. FDA has now allowed Kind to use “healthy and tasty” on its packaging “only in text clearly presented as its corporate philosophy, where it isn’t represented as a nutrient content claim, and does not appear on the same display panel as nutrient content claims or nutrition information.” Further details about the dispute appear…
An Oregon federal court has dismissed a lawsuit alleging Gerber’s Graduates® Puffs is mislabeled because its packaging displays fruits and vegetables not contained in the product. Henry v. Gerber Prods. Co., No. 15-2201 (D. Ore., order entered April 18, 2016). The court first denied the plaintiff’s request to remand the case to state court, then turned to Gerber’s motion to dismiss the claims based on preemption by the federal Food, Drug, and Cosmetic Act. Gerber argued that U.S. Food and Drug Administration (FDA) regulations allow the company to provide visual depictions of the product’s “‛characterizing flavor,’ even if the product does not actually contain any of the depicted fruit, or indeed any fruit at all.” The court agreed, finding that the law is “clear,” even if the “wisdom of the FDA’s regulations on this topic is a different question for a different day.” The court dismissed the case but granted…
A California federal court has dismissed a lawsuit alleging that Diageo PLC misrepresents Red Stripe® beer as brewed in Jamaica, finding “no reasonable consumer would be misled into thinking that Red Stripe is made in Jamaica with Jamaican ingredients based on the wording of the packaging and labeling.” Dumas v. Diageo PLC, No. 15-1681 (S.D. Cal., order entered April 6, 2016). Details about the complaint appear in Issue 574 of this Update. Bottle trays for six and 12-packs of Red Stripe® include, as the court explained, “the language ‘Jamaican Style Lager and ‘The Taste of Jamaica,’” the Diageo-Guinness USA logo and a disclaimer on the bottom of the packaging that states, “Brewed and bottled by Red Stripe Beer Company Latrobe, PA.” Citing a Second Circuit opinion finding that the description of a knife as a “Swiss Army knife” does not imply it was made in Switzerland, the court found that the “mere…
Several consumer organizations, including the Center for Food Safety, Environmental Working Group and Natural Resources Defense Council, have filed a petition for a writ of mandamus in the U.S. Court of Appeals for the Ninth Circuit seeking a writ compelling the U.S. Food and Drug Administration (FDA) to address the groups’ administrative petition filed in December 2014. Breast Cancer Fund v. FDA, No. 16-70878 (9th Cir., petition filed March 31, 2016). FDA missed a June 2015 deadline to respond to the groups’ petition, which implored FDA to rescind foodcontact approval for perchlorate, “an endocrine-disrupting chemical that interferes with the thyroid gland” used in food packaging. “Perchlorate is primarily used in rocket fuel. There is no reason FDA should allow a chemical like this in or on food products,” Andrew Kimbrell, executive director of Center for Food Safety, said in a March 31, 2016, press release. “It is irresponsible, illegal, and…
The California Environmental Protection Agency’s (Cal/EPA’s) Office of Environmental Health Hazard Assessment (OEHHA) has announced the development of hazard identification materials for nickel and nickel compounds, perfluorooctanoic acid (PFOA) and its salts, and pefluorooctane sulfonate (PFOS) and its salts to assist in the agency’s consideration of the chemicals for possible listing under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Food is a major source of nickel exposure, with an average intake for adults estimated to be approximately 100 to 300 micrograms per day (µg/d), while PFOA and PFOS are chemical compounds that have been widely used in commercial and industrial applications, including food packaging and water-resistant coatings. OEHHA specifically seeks data relevant to assessing the chemicals’ reproductive toxicity for evaluation by the Developmental and Reproductive Toxicant Identification Committee. Comments are due by April 4, 2016. See OEHHA News Release, February 19, 2016. Issue 594
The European Food Safety Authority’s (EFSA’s) Panel on Food Contact Materials, Enzymes, Flavorings and Processing Aids (CEF Panel) has issued a scientific opinion recommending revisions to the safety assessments conducted for food contact materials (FCM). After considering scientific comments received during public consultation, the CEF Panel advocates new standards for estimating food intake and calculating the level of FCM migration into food. The scientific opinion also finds that genotoxicity testing for FCM substances should be mandatory even in low-exposure scenarios, and that nanomaterials used in FCM should be evaluated on a “case by case” basis. To address different consumption scenarios, the CEF Panel divided foods into four categories based on exposure data extrapolated from EFSA’s Comprehensive European Food Consumption Database as well as “default water consumption figures set by the World Health Organization (WHO) for infants.” For each of these food categories, the panel identified the “critical” age group with…
