Two California residents have filed putative class claims against the Kellogg Co. in a California federal court, alleging that the company misleads consumers by making health claims for its Nutri-Grain® bars and promoting some of its Keebler cookie products as containing 0 grams of trans fat. Higginbotham v. Kellogg Co., No. 10-255 (S.D. Cal., filed February 1, 2010). According to the complaint, which provides detailed information about the differences between natural saturated fats and artificial trans fat, including that the artificial fat “causes cardiovascular disease, type 2 diabetes, and cancer,” the trans fat content of Kellogg’s products renders them “dangerous and unfit for human consumption.” The plaintiffs seek to certify a class of “All persons who purchased, on or after January 1, 2000, one or more Kellogg products containing artificial trans fat for their own use rather than resale or distribution.” They allege false advertising under the Lanham Act, violations…
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Unilever United States, Inc. has asked a federal district court to dismiss a putative class action charging the company with falsely advertising its “I Can’t Believe It’s Not Butter”® product. Rosen v. Unilever U.S., Inc., No. 09-02563 (N.D. Cal, motion filed November 30, 2009). According to Unilever’s motion, this is a “Private Surgeon General” case that seeks refunds for products purchased over the last four years because Unilever allegedly (i) falsely claims that its products are “Made With A Blend of Nutritious Oils,” and (ii) fails to disclose that the products contain trace amounts of trans fatty acids. Unilever argues that the claims are preempted by federal law which requires a “zero” trans fat content label if the product contains less than 0.5 gram per serving. The company also seeks dismissal under the dormant Commerce Clause, contending that, “If successful, Rosen will Balkanize [trans fat] labeling rules—one set of rules for California…
California residents have filed a putative class action in federal court against the company that makes a number of margarine products, alleging that the products are falsely marketed “as healthful despite the fact its margarines have dangerous levels of artificial trans fat, a toxic food additive banned in many parts of the world.” Red v. Unilever U.S., Inc., No. 09-07855 (C.D. Cal., filed October 28, 2009). According to the complaint, the defendant (i) “specifically markets its margarines as good for cardiovascular health,” (ii) uses “non-standard and deceptive charts” when comparing the nutritional value of margarine to butter, (iii) “misleads consumers by marketing its margarines as ‘cholesterol free,’ implying its products are desirable for those with high blood cholesterol levels,” and (iv) uses “words such as ‘natural’ and ‘nutritious’ to describe products with artificial trans fat and adding images of hearts.” Among the products subject to the litigation are I Can’t Believe…
Noting that Washington, D.C.-based industry lobbyist Rick Berman will be on her MSNBC-TV program during the week of October 5, 2009, Rachel Maddow this week discussed the most recent campaign Berman’s Center for Consumer Freedom has undertaken on behalf of the producers of high-fructose corn syrup (HFCS). Maddow showed viewers the clip of a new TV ad that directs those wanting to know more about how sugar and HFCS are the same to a website that Maddow said was, “brought to you by something called the Center for Consumer Freedom . . . headed by . . . Rick Berman, the D.C. public relations guy who runs these operations as nonprofits so they don’t have to disclose the names of the companies that fund them.” Maddow also said that the center “is not just here to convince you to stop worrying about sugar, they also link to their other sites like…
By a 283-142 vote, the U.S. House of Representatives has passed the “Food Safety Enhancement Act of 2009” (H.R. 2749). The day before its passage, the measure failed to garner the two-thirds majority vote needed to approve legislation submitted under “suspension of the rules,” which would not have allowed any floor amendments. The second submission, on July 30, 2009, needed only a simple majority vote, which was handily achieved. According to news sources, farm-state lawmakers were able to insert several last-minute changes that would exempt some growers from the new farming standards and restrict recordkeeping requirements for livestock farmers. The pork industry apparently kept some proposed restrictions on antibiotic use out of the final bill. Heralded by some as an historic moment for food safety, the bill would provide for more frequent inspections of processing plants and would give the Food and Drug Administration (FDA) the authority to order the…
A recent study has reportedly linked cognitive decline in some diabetic women to high intakes of saturated and trans fats and low intakes of polyunsaturated fats during midlife. Elizabeth E. Devore, “Dietary Fat Intake and Cognitive Decline in Women With Type 2 Diabetes,” Diabetes Care, April 2009. Harvard Medical School researchers apparently assessed the cognitive functioning of approximately 1,500 women with type 2 diabetes enrolled in the Nurses’ Health Study, finding that those in the highest tertile of trans fat intake scored 0.15 standard units lower on six cognitive function tests when compared to women in the lowest tertile. “This mean difference was comparable with the difference we find in women 7 years apart in age,” stated the authors, who noted a need for “further research to confirm these findings and explore additional strategies for maintaining cognitive health in diabetes – especially in women, who can have a higher lifetime…
A federal court in California has approved the settlement of class claims against Wendy’s International, Inc. involving its use of trans fats in fried food products. Yoo v. Wendy’s Int’l, Inc., No. 07-04515 (C.D. Cal., filed March 13, 2009). In its revised order and final judgment, the court overruled objections to the settlement, certified a nationwide settlement class and dismissed the complaint with prejudice. The defendant was ordered to add $450,000 plus interest to the $1.8 million already in an escrow account to be divided equally among the American Cancer Society, American Diabetes Association, American Dietetic Association, and American Heart Association. The court also ordered the defendant to ensure that its fried foods are cooked in oil containing a level of trans fat per serving that “can be represented as 0 grams of trans fat,” under Food and Drug Administration regulations. Wendy’s was further ordered to “pay for and subject its…
Minneapolis and St. Paul are reportedly developing ordinances to require some restaurants to remove trans fats from their menus and to list calories alongside portions. St. Paul would require chain restaurants with 15 or more locations nationwide to abide by both proposed ordinances, while Minneapolis would apply its menu labeling regulation only to chain restaurants and its trans fat ban to all restaurants, groceries and bakeries. The city councils could take both measures under consideration as early as February. Meanwhile, the executive president of the Minnesota Restaurant Association, David Siegel, told reporters that most restaurants have already phased out trans fat in response to public demand. In addition, he noted a growing desire for a federal benchmark with respect to menu labeling laws. “Let’s give information to consumers and create a national standard like we did in grocery stores,” said Siegel, pointing to the cost and frustration of navigating the…
A California woman who claimed that Wendy’s International, Inc. violated state consumer protection laws by misrepresenting the trans fat content of its French fries and fried chicken products has entered a settlement agreement with the fast-food company. Yoo v. Wendy’s Int’l, Inc., No. 07-4515 (C.D. Cal., settlement filed December 2008). For purposes of the settlement, the parties agreed to the certification of a nationwide class of those who purchased Wendy’s fries and chicken for the past two years. Without conceding any liability, Wendy’s agreed to (i) eliminate trans fat from its frying process, (ii) submit to independent testing, (iii) donate $1.8 million to cancer, diabetes and heart associations, and (iv) not oppose a fee award of up to $1.09 million to class counsel in the Yoo action. Attorneys representing class claimants in similar litigation filed in New York and Florida will share the fee distribution. Wendy’s also agreed to attribute the $2.2…
