A plaintiff’s “cursory, formulaic recitation” of her purchase of Jelly Belly Candy Co.'s Sport Beans did not include enough factual allegations to establish a claim for relief, a California federal court has ruled. Gomez v. Jelly Belly Candy Co., No. 17-0575 (C.D. Cal., order entered June 8, 2017). The plaintiff had alleged the candy maker’s use of the term “evaporated cane juice” (ECJ) on the packaging misled her about the product's sugar content. Additional details on the complaint appear in Issue 629 of this Update. “Absent from the Complaint are any factual allegations concerning the circumstances of Gomez’s purchase of the product, how she intended to use the product, whether she in fact expected a sugar-free product, whether she thought ‘evaporated cane juice’ was juice as opposed to sugar, and whether she consumed the product,” the court said, granting Jelly Belly's motion to dismiss. However, the court ruled that Gomez…
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A Pennsylvania appeals court has upheld Philadelphia’s tax on the distribution of sugar-sweetened beverages (SSBs), rejecting arguments that it is a duplicate sales tax or is preempted by state tax laws. Williams v. City of Philadelphia, Nos. 2077, 2078 (Pa. Commonwealth Ct., order entered June 14, 2017). The court held that the subject matter of the tax—the non-retail distribution of SSBs—is “distinct” from the sales tax collected when the beverages are sold to a retail purchaser, and thus the distribution tax is not duplicative of an existing tax. In addition, the court said, the tax is not preempted under state law because Pennsylvania cities have the right to tax transactions that are not already subject to state tax or license fees. Nor is it preempted by the federal Food Stamp Act or related tax laws because the tax is levied on the distributors of SSBs and “no recipient of program…
The U.S. Food and Drug Administration (FDA) has announced that it will postpone the deadline for food companies to use a revised Nutrition Facts label on packaged foods and beverages that includes added-sugar content and emphasizes calorie content. The FDA guidance document on the changes was updated to note that it received feedback from industry and consumer groups about the compliance dates. "As a result, the FDA intends to extend the compliance dates to provide the additional time for implementation," the guidance documents states. "The framework for the extension will be guided by the desire to give industry more time and decrease costs, balanced with the importance of minimizing the transition period during which consumers will see both the old and the new versions of the label in the marketplace." Issue 638
A study examining the health effects of sugary and artificially sweetened beverages has allegedly concluded that consumption of the latter was associated with an increased risk of stroke and dementia. Matthew P. Pase et al., “Sugar and Artificially Sweetened Beverages and the Risks of Incident Stroke and Dementia,” Stroke, May 2017. Based on data from more than 4,000 adults enrolled in Framingham Heart Study Offspring cohort, the study followed health outcomes for 10 years and purportedly accounted for confounding factors such as “age, sex, education (for analysis of dementia), caloric intake, diet quality, physical activity, and smoking.” The results apparently suggested that, when compared to those who abstained from artificially sweetened beverages, participants who imbibed up to six servings per day were at greater risk of stroke or dementia, with the strongest associations for ischemic stroke. “To our knowledge, our study is the first to report an association between daily…
The World Health Organization (WHO) has issued a November 4, 2016, report titled "Tackling food marketing to children in a digital world: trans-disciplinary perspectives," which urges policymakers “to reduce children’s exposure to all forms of marketing for foods high in fats, salt and sugars [HFSS], including via digital media.” In particular, the report claims digital marketing campaigns take advantage of regulatory loopholes to amplify the traditional media advertising of HFSS foods, “achieving greater ad attention and recall, greater brand awareness and more positive brand attitudes, greater intent to purchase and higher product sales.” The report calls attention to the privacy issues that purportedly surround the digital marketing of foods to children, including the collection and use of geo-location and personal data. It also warns that “some food chains partner with gaming companies in order to, for example, make the chain’s restaurants important game locations,” while other advertisers reportedly rely on advergames, social…
A consumer has filed a putative class action against Dole Packaged Foods, LLC alleging the company’s products contain too much added sugar to be labeled as “rich in nutrients” or “healthy.” Amaya v. Dole Packaged Foods, LLC, No. 15-7734 (C.D. Cal., filed October 18, 2016). The complaint first details research connecting added sugar intake to detrimental health effects, including type 2 diabetes, cardiovascular disease and metabolic syndrome, then asserts that Dole’s products containing added sugar are misleadingly labeled. “Dole’s representations that Dole Fruit & Oatmeal contains ‘real fruit!’ and ‘No Trans Fat or Cholesterol,’ and is ‘a healthy . . . Breakfast’ are false, or even if literally true at least highly misleading, in light of the substantial added sugar in the Dole Fruit & Oatmeal products,” the plaintiff argues. The complaint also alleges the labeling claims are unlawful because (i) a statement indicating that the product is free of…
Representing a group of three consumers, the Center for Science in the Public Interest (CSPI) has filed a lawsuit against PepsiCo, Inc. alleging the company’s Naked line misleads consumers by naming and labeling its juices with foods “perceived by consumers to be highly nutritious, like kale,” but manufacturing the products without “the ingredient profile represented.” Lipkind v. PepsiCo, Inc., No. 16-5506 (E.D.N.Y., filed October 4, 2016). “Consumers are paying higher prices for the healthful and expensive ingredients advertised on Naked labels, such as berries, cherries, kale and other greens, and mango,” said CSPI Litigation Director Maia Kats in an October 4, 2016, press release. “But consumers are predominantly getting apple juice, or in the case of Kale Blazer, orange and apple juice. They’re not getting what they paid for.” The complaint asserts Naked products “predominantly consist of cheaper and less nutritious ingredients like apple juice” and targets the label’s “no…
Researchers with the University of California, San Francisco, including its Center for Tobacco Control Research and Education, published a September 12, 2016, JAMA article claiming that studies funded by the Sugar Research Foundation (SRF) “singled out fat and cholesterol as the dietary causes of CHD [coronary heart disease] and downplayed evidence that sucrose consumption was also a risk factor.” Titled “Sugar Industry and Coronary Heart Disease Research: A Historical Analysis of Internal Industry Documents,” the special communication analyzes correspondence, internal documents, historical reports, and other statements obtained from SRF and its scientific advisors. The article authors allege that SRF initiated its own CHD research in 1962, after preliminary studies suggested that a low-fat diet high in sugar raises serum cholesterol levels. To this end, the SRF purportedly funded a New England Journal of Medicine (NEJM) literature review “arguing that epidemiologic, animal, and mechanistic studies associating sucrose with CHD were limited, implying…
The American Heart Association (AHA) has issued a scientific statement allegedly linking added sugar consumption “at levels far below current consumption levels” to cardiovascular disease risk factors in children. Published in the August 22, 2016, issue of Circulation, the statement recommends that children consume less than 25 grams (100 calories or approximately six teaspoons) of added sugar per day, while advocating that children younger than age 2 should avoid added sugars altogether. After reviewing the latest studies on the topic, the AHA committee apparently identified “strong evidence” backing “the association of added sugars with increased cardiovascular disease risk in children through increase energy intake, increase adiposity, and dyslipidemia.” Among other things, the statement finds that “foods and beverages each contribute half of the added sugars in children’s diets, 40 g each,” and includes soda, fruit-flavored and sports drinks, cakes, and cookies as the top contributors to added sugar in children’s…
The U.S. Food and Drug Administration (FDA) has announced revisions to the Nutrition Facts label designed to emphasize “the link between diet and chronic diseases such as obesity and heart disease.” In addition to highlighting calories, servings per container and serving-size declarations through a combination of increased type size and boldface, the new labels will (i) require “added sugars” in grams and as a percent daily value, (ii) require Vitamin D and potassium values, and (iii) make Vitamins A and C optional. Citing scientific research, FDA has updated several daily values and eliminated “Calories from Fat,” but increased mandatory serving sizes to better reflect food consumption data. Food packages containing one to two servings that are typically consumed in one sitting must list calories and nutritional information for the entire packaged portion. Manufacturers must also use dual-column labels for 24-ounce sodas, ice cream pints and other foods and beverages that…
