A California woman has filed a putative nationwide class action against the company that makes Muscle Milk® beverages and protein bars, alleging that promotions touting the products as “high performance” and “nutritious snacks” are false and misleading because they contain as much fat and calories as Krispy Kreme® doughnuts. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., filed July 18, 2011). The company apparently markets the products as “a ‘meal replacement’ to provide ‘healthy sustained energy’” and allegedly “suggests that these fat-filled Products will help people lose weight, telling consumers, among other things, that the Products will help people ‘Go from cover it up to take it off.’” According to the complaint, the named plaintiff purchased the products for six months and consumed them “before workouts, after workouts, in between meals as a snack, and sometimes as a meal replacement.” She contends that she did so in reliance on the…
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“Over the course of the past half century, during which PepsiCo’s revenues have increased more than a hundredfold, a public-health crisis has been steadily growing along with it. People are getting fatter,” opines The New Yorker’s John Seabrook in this article examining the tension between the ubiquitous snack food empire and its recent foray into “authentic, scientifically advantaged” functional foods designed “for different life stages—snacks for teens, snacks for pregnant women, snacks for seniors.” In particular, Seabrook focuses on PepsiCo’s recruitment of academics, scientists and former regulators to bolster its new global health agenda, which includes efforts to reduce sodium and sugar in its flagship products, as well as launch “better for you” foods that re-create both the physical and aspirational experience associated with high brand recognition. “No one I met at PepsiCo better represents the complicated relationship between private food companies and public health than Derek Yach, the company’s…
The Judicial Panel on Multidistrict Litigation (JPML) has denied a request that five false advertising lawsuits pending in two federal district courts against The Quaker Oats Co. be consolidated for pretrial proceedings in Illinois. In re: Quaker Oats Trans-Fat Mktg. & Sales Practices Litig., MDL No. 2230 (J.P.M.L., decided April 8, 2011). The putative class actions involve claims that the company advertises its Chewy Bars® as containing “0 grams trans fat” when they purportedly contain “dangerous amounts of artificial trans fat, a toxic product that causes cancer, diabetes, and heart disease, and is banned in an increasing number of United States and foreign jurisdictions.” The JPML apparently determined that centralization would not “serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation.” The panel noted that four of the pending actions were filed in one district court in California and were already underway.…
Massachusetts public health regulators have reportedly approved proposed rules that would prohibit public schools from selling sweetened soft drinks, salty and calorie-laden packaged snacks, and white bread sandwiches as a way to combat childhood obesity. Effective in the 2012-13 school year, the proposed regulations need the approval of the state’s Public Health Council, which is expected to consider the issue in spring 2011. According to a news source, the proposed regulations would apply to a la carte lines, snack shops and vending machines, but not main cafeteria lines. “You don’t want to be feeding kids a bunch of sugar or low-nutrient foods and expect them to be well-prepared to learn,” said Jill Carter, executive director of the Health and Wellness Department in Boston’s public schools. See The Boston Globe, February 10, 2011.
A federal court in California has dismissed on preemption and standing grounds a number of state-law claims against The Quaker Oats Co. in a lawsuit alleging that the company falsely advertises its Chewy Bars® as containing “0 grams trans fat” when the ingredient list labeling includes hydrogenated vegetable oil. Chacanaca v. The Quaker Oats Co., No. 10-0502 (N.D. Cal., decided October 14, 2010). So ruling, the court lifted a discovery stay order and scheduled a case management conference for December 16, 2010. The defendant sought judgment on the pleadings at the outset of the action, arguing that “the doctrines of express preemption, primary jurisdiction, and Article III standing warrant immediate dismissal of the entire case.” The court agreed to dismiss all state-law deception claims involving the “0 grams trans fat” statement, the “good source” of calcium and fiber statements and a statement that the product contains whole grain oats but lacks…
A company that makes name- and store-brand food products, including cereals, granola products, pastas, and bakery goods, has sued the supplier of soybean food ingredients allegedly contaminated with Salmonella, seeking in excess of $7 million in damages. Ralcorp Holdings, Inc. v. Thumb Oilseed Producers’ Coop., No. 10-1898 (E.D. Mo., filed October 8, 2010). According to the complaint, the companies contracted for the purchase of the defendant’s soy grits under an agreement that guaranteed they would be suitable for human consumption and that the defendant would indemnify and pay damages to the plaintiff for any warranty breaches. Plaintiff Ralcorp Holdings alleges that it incorporated most of the soy grits into its products, specifically granola bars and trail mixes, for sale to a number of retail companies with which Ralcorp had also contracted. Before delivering the final products, Ralcorp claims that it discovered the soy grit ingredient “was, and had been at…
A federal court in Illinois has dismissed claims that companies failing to disclose that the fiber in their snack-bar and yogurt products is “non-natural” chicory root-based inulin, which allegedly lacks the same health benefits as “natural” fiber, have violated state consumer fraud laws. Turek v. General Mills, Inc., No. 09-7038 (N.D. Ill., decided September 1, 2010). According to the court, the plaintiff’s claims are expressly preempted by the federal Nutritional Labeling and Education Act (NLEA) because they would impose requirements under state law that are not identical to federal law requirements. The products at issue are labeled with statements about the percent of daily fiber they contain or grams of fiber provided per serving. Discussing the application of preemption provisions in various federal laws, the court also sets out all of the federal regulations pertaining to fiber in foods. The court concludes, “plaintiff wants to change the labeling on defendants’…
The European Snacks Association (ESA) has apparently vowed to standardize product portion sizes, citing dietary recommendations and consumption patterns. In conjunction with an EU trade group representing food and beverage manufacturers, ESA has set a reference serving size that does not exceed 8 percent of the overall Guideline Daily Amount (GDA), or approximately 160 kcal. Thus, according to ESA, (i) “30g of snacks would provide 120-170 kcal, depending on the nature of the ingredients/preparation of the product”; and (ii) “30g of nuts would provide 170-200 kcal, depending on the nutritional differences between nuts and their preparation.” ESA has also promised to declare the number of portions per package so that consumers can adjust their dietary habits as needed. The European Snacks Association (ESA) has apparently vowed to standardize product portion sizes, citing dietary recommendations and consumption patterns. In conjunction with an EU trade group representing food and beverage manufacturers, ESA…
The attorneys for a woman who recently reportedly sued General Mills for failing to properly disclose that its fruit snack products contain partially hydrogenated oil also represent a man who has filed similar claims against the companies that make and sell Yoo-Hoo®, a chocolate beverage. Dahl v. Mott’s LLP, No. __ (E.D.N.Y., filed June 29, 2010). Information about the General Mills lawsuit appears elsewhere in this Update. According to plaintiff Timothy Dahl, the defendants promote Yoo-Hoo® as a nutritious and healthy product, claiming that it contains vitamins and minerals, has no preservatives and is 99 percent fat free and 99 percent caffeine free. The complaint states, “Unfortunately for consumers and, in certain cases their children, all these claims are false and misleading. Defendants’ healthful claims are misleading since the Product fails to properly disclose they contain a highly unhealthy, non-nutritious ingredient known as partially hydrogenated oil. This partially hydrogenated oil…
A California resident has filed a putative class action in federal court against Kellogg Co., alleging that the company misled consumers by claiming its snack products were healthy and nutritious and met “stringent food safety requirements,” when in fact they contained Salmonella-contaminated peanut paste supplied by the Peanut Corporation of America. Benavides v. Kellogg Co., No. 10-02294 (C.D. Cal., filed March 29, 2010). The Peanut Corp. Salmonella outbreak led to a massive recall of food products, including Kellogg’s Austin® and Keebler® branded sandwich crackers and cookies. The complaint alleges that Kellogg hired unqualified private inspectors to audit its suppliers’ manufacturing plants while claiming that its suppliers met Codex Alimentarius Commission standards. The plaintiff seeks to certify a nationwide class of consumers with alleged monetary injury. He alleges (i) unlawful business acts and practices in violation of California’s Sherman Food, Drug and Cosmetics Law and Consumer Legal Remedies Act; (ii) deceptive marketing and…
