Clif Bar & Co. has submitted a settlement agreement to a California federal court seeking approval to settle a class action alleging that Clif Bars are misleadingly marketed as healthy despite containing levels of sugar beyond what consumers would expect healthy foods to contain. Milan v. Clif Bar & Co., No. 18-2354 (N.D. Cal., filed June 23, 2022). In addition to establishing a $10.5-million fund, Clif will "make significant changes to the labeling and packaging of its original Clif Bars and Kid ZBars," according to the agreement. The changes include refraining from use of "nutrition," "nutritious" and "nourishing kids in motion" on Clif Bar packaging "so long as 10% or more of [a bar's] calories come from added sugars." The class includes customers who purchased Clif Bars between April 19, 2014, and June 23, 2022, and claimants will be divided into quintiles with varying levels of awards depending on degrees of…
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The European Food Safety Authority (EFSA) has completed a "comprehensive safety assessment of sugars in the diet and their potential links to health problems." The assessment aimed to set a tolerable upper intake level for dietary sugars, but the panel was unable to reach a conclusion. According to the assessment's plain language summary, "the risk of adverse health effects (responses) increased across the whole range of observed intake levels (doses) in a constant (linear) manner, i.e. the higher the intake, the greater the risk of adverse effects." The announcement indicated that the wide-ranging assessment may allow researchers to set a tolerable upper intake level following future studies. One panelists reportedly stated, "We screened over 30,000 publications so we have identified several areas to target for researchers and technicians. The pooling and reuse of individual human data from research studies would be a valuable source of information. Research should focus both…
A California federal court has approved the settlement of a lawsuit alleging Post Foods LLC misrepresented the nutritional value of its cereals because of the added sugar content. Krommenhock v. Post Foods LLC, No. 16-4958 (N.D. Cal., entered February 24, 2021). Under the settlement agreement, Post will pay $15 million to the nationwide class and remove phrases related to nutritional benefits on its packaging if more than 10% of the cereal's calories per serving come from added sugar.
A consumer has filed a putative class action alleging that Kerry Inc.'s Oregon Chai products contain too much sugar to be labeled "slightly sweet." Brown v. Kerry Inc., No. 20-9730 (S.D.N.Y., filed November 18, 2020). The complaint argues that the product's "most prominent claim, 'Slightly Sweet,' is an unlawful nutrient content claim that makes an 'absolute' or 'low' claim about the amount of sugar it contains." The product contains 11 grams of sugar and lists "organic dried cane sugar syrup" as the second ingredient on the ingredient list, and the complaint argues that the addition of milk or milk substitute as instructed by the packaging would result in a total of 20 grams of sugar per serving. The plaintiff alleges negligent misrepresentation, fraud and unjust enrichment along with violations of the Magnuson-Moss Warranty Act and New York's consumer-protection statutes.
The U.S. Food and Drug Administration (FDA) has issued final guidance on the declaration of allulose in food. "The guidance describes FDA's views on the declaration of allulose on Nutrition Facts and Supplement Facts labels and the caloric content of allulose," according to the announcement. "The guidance also announces our intent to exercise enforcement discretion for the exclusion of allulose from the amount of Total Sugars and Added Sugars declared on the Nutrition Facts and Supplement Facts label and use of a general factor of 0.4 calories per gram (kcal/g) for allulose when calculating declarations on Nutrition and Supplement Facts labels." The agency also announced a request for comments on "the nutrition labeling of sugars that are metabolized differently than traditional sugars," such as allulose, D-tagatose and isomaltulose. According to the announcement, "Some sugars (e.g., allulose, D-tagatose, isomaltulose) do not have all of the same effects in the body as…
A group of consumers has filed a putative class action alleging the Healthy Beverage Co. LLC misleadingly labels its products as "lightly sweetened" because the product contains 20 grams of added sugar, or 40% of the recommended daily intake. Pierre v. Healthy Beverage Co. LLC, NO. 20-4934 (E.D. Penn., filed October 6, 2020). The complaint cites a letter from the Center for Science in the Public Interest to the U.S. Food and Drug Administration alleging the company's representations of its products as "lightly sweetened" are misleading as well as the definition of "lightly" as it appears in a Merriam-Webster dictionary. The plaintiffs allege one cause of action, unjust enrichment, on behalf of a proposed nationwide class.
The Supreme Court of Ireland has held that Subway's breads are subject to value-added tax (VAT) because they contain too much sugar to be considered a staple product. Under the country's VAT law, bread can contain up to 2% sugar in the flour to be classified as a staple product exempt from the tax; Subway's breads contain about 10% sugar in the flour for both the white and wholegrain varieties. Following the ruling, the breads will be taxed at 13.5% under the law. The Irish court reached the ruling following a challenge by a Subway franchisee alleging it should not have to pay the VAT.
Berkeley, California, has reportedly passed an ordinance that will prevent grocery stores from displaying candy and soft drinks at the point of sale in an effort to encourage the consumption of food with more nutritional benefits, such as fruits and nuts. The ordinance, which applies to retailers with more than 2,500 square feet, states that products displayed in checkout aisles must have less than five grams of added sugars and less than 250 milligrams of sodium per serving. The ordinance will take effect March 1, 2021, with enforcement beginning in 2022.
A California federal court has rejected a settlement in a lawsuit that alleged Kellogg Sales Co. misled consumers by marketing its products as "healthy." Hadley v. Kellogg Sales Co., No. 16-4955 (N.D. Cal., San Jose Div., entered February 20, 2020). The court found the settlement agreement to be invalid for several reasons: (i) "the release of the claims is overbroad"; (ii) the parties did not show that certification was appropriate; (iii) the parties failed "to provide sufficient information to justify a proposed reversion to Kellogg"; (iv) several forms associated with class participation contained errors; and (v) the "settlement structure is currently inconsistent with the fact that the voucher portion of the settlement constitutes a coupon settlement under the Class Action Fairness Act." Shook Partner Lindsey Heinz and Associate Elizabeth Fessler wrote an article for Law360 on the settlement when it was announced in late 2019, focusing on the lessons companies…
A California appeals court has determined that the "no sugar added" phrasing on Califia Farms' Cuties tangerine juice does not imply to consumers that competitors add sugar to their products. Shaeffer v. Califia Farms LLC, No. B291085 (Cal. App. Ct., entered February 6, 2020). The lower court dismissed the complaint, ruling that the "no sugar added" representation was truthful. The appeals court considered "statements a business affirmatively and truthfully makes about its product and which do not on their face mention or otherwise reference its competing products at all." The court found that a "statement may be 'fraudulent' (and hence actionable) if it is 'deceptive and misleading in its implications,'" but declined to hold as actionable truthful statements about a company's own product when the argument is that a reasonable consumer would "(1) likely to infer from such a statement that the very same statement is untrue as to comparable,…
