Finding the plaintiffs’ state-law claims preempted, a federal court in California has dismissed a putative class action alleging that the Kroger Co. falsely labeled its margarine and graham crackers as “0g Trans Fat per serving” and “a Cholesterol Free Food,” when they actually contain various hydrogenated oils. Red v. The Kroger Co., No. 10-01025 (C.D. Cal., decided September 2, 2010). According to the court, the Food and Drug Administration has promulgated specific regulations on the use of these terms, and because the products at issue comply with the requirements under which the terms can be used, the plaintiffs’ claims are expressly preempted under the National Labeling and Education Act of 1990. In the court’s words, “Plaintiffs cannot escape the fact that they seek to enjoin exactly what federal law expressly permits.” Alleging the violation of California consumer protection statues, the plaintiffs had sought an order compelling the defendant to (i) cease…
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A federal court in California has denied in part and granted in part the motion to dismiss filed by Smart Balance, Inc., which is defending a putative class action alleging that the company misled consumers by marketing its Nucoa margarine as cholesterol-free and healthy despite the artificial trans fat in the product. Yumul v. Smart Balance, Inc., No. 10-00927 (C.D. Cal., order entered July 30, 2010). The plaintiff alleges violations of the state’s unfair competition and false advertising laws and violation of the Consumer Legal Remedies Act. She seeks an injunction requiring that the misleading advertising practices cease, a corrective advertising campaign, restitution, and an injunction requiring the destruction of all misleading and deceptive materials and products. The defendant asserted that the factual allegations lacked sufficient specificity and also contended that the complaint be dismissed because it was based on conduct outside the applicable limitations period. Declining to consider some materials submitted…
The Food and Drug Administration (FDA) has submitted to the Office of Management and Budget a proposed information collection related to food labeling regulations. According to FDA, these regulations govern the submission of food labeling petitions and require food producers to: (i) disclose specific information about themselves or their products on labeling; (ii) retain records establishing the basis for the information contained on labeling; and (iii) provide these records to regulatory officials. The information collection notice provides estimated annual reporting and recording keeping burdens for these regulations. FDA has noted that it is no longer combining these burden hour estimates with those in information collections titled, “Food Labeling: Nutritional Labeling of Dietary Supplements on a ‘Per Day’ Basis” and “Food Labeling: Trans Fatty Acids in Nutrition Labeling,” although “[s]uch consolidation may occur in the future.” The agency will accept comments until August 16, 2010. See Federal Register, July 15, 2010.
The American Medical Association (AMA) has adopted new public health policies concerning the reporting of fats on nutrition labels and obesity reduction. During its June 14, 2010, annual meeting, AMA urged the Food and Drug Administration (FDA) to adopt more “precise processes” to measure trans and saturated fat content in foods. Under current FDA guidelines, trans and saturated fat content can be listed on nutrition labels as zero if the food product contains less than 0.5 grams per serving. AMA claims that products labeled “trans fat free” or “zero trans fat” could supply in one serving as much as 25 percent of the recommended daily allowance of trans fats. Claiming that “it’s difficult to make dietary changes if food labels are unclear,” AMA board member Edward Langston urged FDA to use “clear, concise and uniform labeling” and list the most accurate information. AMA also adopted a policy supporting efforts to…
According to research recently conducted by Harvard’s Medical School and School of Public Health in collaboration with the Center for Science in the Public Interest (CSPI), food manufacturers and chain restaurants have responded to trans fat restrictions and bans by improving the quality of the foods rather than simply reverting to the use of saturated fats. Dariush Mozaffarian, Michael Jacobson & Julie Greenstein, “Correspondence: Food Reformulations to Reduce Trans Fatty Acids,” The New England Journal of Medicine, May 27, 2010. The authors state that they “identified 83 reformulated products (58 supermarket foods and 25 restaurant foods),” and studying product labels, they found that trans fats and saturated fats were reduced in 90 percent of the supermarket products and 96 percent of the restaurant products. In a statement about the research, CSPI’s executive director said, “This paper demonstrates that the U.S. food industry has been generally responsible in replacing partially hydrogenated oils…
A federal district court in California has dismissed claims against the company that makes the product “I Can’t Believe It’s Not Butter,” finding that, while not preempted under federal labeling law, the complaint failed to allege facts “plausibly suggestive” of a claim entitling the plaintiff to relief under the U.S. Supreme Court’s recently adopted Twombly/Iqbal pleading standard. Rosen v. Unilever U.S., Inc., No. 09-02563 (N.D. Cal., decided May 3, 2010). The plaintiff alleged that the company violated state consumer protection laws by advertising its product as nutritious when, in fact, it contains partially hydrogenated oil, “an artificial, man-made substance that has no nutritional value and is known to cause a number of health problems.” The defendant sought to dismiss the claims as expressly preempted under the Nutritional Labeling and Education Act, contending that use of the phrase “0g Trans Fat” on product labels complies with Food and Drug Administration regulations where a…
The Center for Science in the Public Interest (CSPI) has called on three national restaurant chains to follow the steps of other food establishments by no longer using artificial trans fat in their fare. “Bob Evans, White Castle, and Long John Silver’s are now the roguish outliers among the restaurant industry,” said CSPI Executive Director Michael Jacobson. “Many Americans might have thought that the era of artificial trans fat was over. At these chains, it lives tragically on.” Artificial trans fat has been dropped by chains, including McDonald’s, Burger King, Wendy’s, and Starbucks. The American Heart Association recommends limiting consumption of trans fat to no more than 2 grams per day that comes naturally from sources such as milk and beef, which “doesn’t leave much room for trans fat from artificial sources,” said CSPI. See CSPI News Release, April 26, 2010.
Assembly members have introduced a bill (A10665) similar to legislation in effect in New York City, that would restrict the use of artificial trans fats in foods sold in restaurants and retail food stores. Sponsored by Assemblymen Felix Ortiz (D-Brooklyn) and Richard Gottfried (D-Manhattan), the trans fat bill would not allow the use or sale of foods containing trans fat unless sold in the manufacturer’s original sealed and properly labeled package. The measure would take effect as to “oils, shortenings and margarines containing artificial trans fat that are used for frying or in spreads,” 180 days after the bill is passed, and would be effective December 31, 2011, as to “oils or shortenings used for deep frying of yeast dough or cake batter and all other foods containing artificial trans fat.” The law would not apply to products containing less than 0.5 grams of trans fats per serving. Sponsored by Assemblywoman Barbara…
A New York resident has filed a false-advertising class action in a California federal court against the companies that make certain ice cream products labeled with the statement “0g trans fat.” Carrea v. Dreyer’s Grand Ice Cream, No. 10-1044 (N.D. Cal., filed March 11, 2010). Seeking to certify a nationwide class of ice cream purchasers, the plaintiff alleges false advertising under the Lanham Act and violations of the California Consumers Legal Remedy Act and the misleading and deceptive advertising provisions of the state Business and Professions Code. The plaintiff seeks a declaration that the defendants have committed the alleged violations, restitution, disgorgement, compensatory and punitive damages, interest, and costs. He also asks the court to order defendants to destroy all misleading and deceptive advertising materials and products. According to the complaint, the plaintiff relied on the alleged misrepresentations to conclude “that the Products were in fact healthy and relied upon…
Two California residents have filed a false advertising complaint on behalf of themselves and a nationwide class of consumers against The Quaker Oats Co., alleging that the company falsely labels Chewy Granola Bars® as “0g trans fat” when they actually 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.” Chacanaca v. The Quaker Oats Co., No. 10-502 (N.D. Cal., filed February 3, 2010). Represented by the same counsel and using the same graphics and allegations about natural and trans fats as a complaint filed a few days earlier against Kellogg involving its Nutri-Grain® bars, the plaintiffs allege violations of the Lanham Act, California’s statutory and common laws of unfair competition, and the California False Advertising Law and Consumer Legal Remedies Act. They seek to enjoin the alleged false marketing and…
