You'll remember the scene from "Casablanca." Ilse (Ingrid Bergman) comes in and Rick (Humphrey Bogart) says, "Your unexpected visit isn't connected by any chance with the letters of transit. It seems as long as I have those letters, I'll never be lonely." That's sort of how I feel about "all natural" product labeling litigation. So long as those cases exist, perhaps I'll never be lonely. But will they always exist? The latest decision in our old friend, Astiana v. Ben & Jerry's Homemade, Inc., provides me with some optimism I might be lonely again.
As you'll recall from our post when this case was first filed, the plaintiff was upset because, she claimed, dutched cocoa was somehow an artificial product. We pooh-poohed that notion, but, presumably for reasons of judicial economy, Ben & Jerry's chose to settle the case.
In the meantime, though, the Ninth Circuit Court of Appeals decided Dennis v. Kellogg Co., which greatly restricted the terms under which settlements of similar cases could be approved. In particular, the case limited the use of the cy pres doctrine, which would dispose of unexpended settlement funds, to charities that benefit the same goals as the unrepresented and unfound members of the plaintiff class. The court said,
Thus, appropriate cy pres recipients are not charities that feed the needy, but organizations dedicated to protecting consumers from, or redressing injuries caused by, false advertising. On the face of the settlement's language, "charities that provide food for the indigent" may not serve a single person within the plaintiff class of purchasers of [the allegedly offending product].
Dennis was decided by the Ninth Circuit literally between the time the court in Astiana had preliminarily approved the class settlement and the date of the hearing on final approval. The court, cognizant of the decision, asked the parties to go back and revise their settlement to one that could be approved in light of Dennis. This they were unable to do, and the settlement collapsed. The plaintiffs then moved to certify the class. And got pounded by the court. After the jump, you'll see how.Continue Reading...
The Nutrition Facts panel found on many food packages, that most of us have been scanning in grocery aisles for the past 20 years, is expected to undergo some significant changes starting this week. According to a recent press release from the U.S. Food and Drug Administration (FDA), the agency is planning to update the Nutrition Facts label based on the latest science-based nutrition recommendations.
Sources indicate that the changes may be announced as soon as this Thursday, when First Lady Michelle Obama is scheduled to speak at the fourth anniversary celebration of the “Let’s Move!” campaign. Bookmark this site for our report once the proposed Nutrition Facts changes are announced.
By way of background, the Nutrition Facts panel has allowed consumers to have consistent nutritional information and to make healthier choices, since passage of the Nutrition Labeling and Education Act of 1990 mandated nutrition labeling. In addition, throughout the years, mandatory nutrition labeling has encouraged many companies to change their ingredients to make the foods more healthful and thus more appealing to many consumers.
However, in light of new knowledge about nutrition and more evidence that people actually consult the labels of food packages, FDA officials believe it is time for an overhaul. Paula Trumbo, Ph.D., acting director of FDA’s nutrition programs staff explains that “updates are currently being assessed to address such factors as current nutrient recommendations, public health concerns based on recent data on food consumption, and the agency’s desire to make this information as clear and useful as possible.”
From labor and employment attorney Alyson Palmer:
The U.S. Occupational Safety and Health Administration (OSHA) published an interim final rule on February 13, 2014, creating the process for handling retaliation complaints brought by whistleblowers under Section 402 of the Food Safety Modernization Act (FSMA). Section 402 of FSMA amended the Federal Food, Drug, and Cosmetic Act to add Section 1012, 21 U.S.C. 399d, which provides protection for employees “engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food” who report a violation of the Act, testify against, or otherwise participate in a proceeding related to a violation.
Prior to the passage of FSMA on January 4, 2011, there was no federal whistleblower protection in the food safety arena. Accordingly, food industry employees were dependent upon state wrongful discharge laws for relief. Now, any employee who submits a complaint indicating a violation of FSMA or any FDA regulation or order is protected from any form of adverse employment action or harassment based in whole or in part on such a complaint.Continue Reading...
On August 29, 2012, the Center for Food Safety (CFS) and the Center for Environmental Health filed an action against the U.S. Food and Drug Administration (FDA) alleging that the agency had violated the Food Safety Modernization Act (FSMA) and the Administrative Procedure Act (APA) by unlawfully withholding FSMA regulations beyond the required statutory deadlines. The plaintiffs sought declaratory and injunctive relief requiring FDA to issue the regulations pursuant to a court-ordered timeline.
Yesterday, the U.S. District Court for the Northern District of California issued a consent decree whereby the parties agreed to extend and stagger the final rule deadlines beyond the June 2015 deadline initially set by the court last year. In exchange, the FDA has agreed to drop its Ninth Circuit appeal in the dispute with the two consumer advocacy groups.
The regulations required under FSMA were originally scheduled to be promulgated in 2012. However, due to significant delays and budgetary concerns, the FDA failed to meet those deadlines which prompted CFS to file its lawsuit.
According to the consent decree, the new deadlines are as follows:
|Preventive controls for human food||August 30, 2015|
|Preventive controls for animal food||August 30, 2015|
Produce safety standards
|October 31, 2015|
|Foreign Supplier Verification Program||October 31, 2015|
|Accreditation of third-party auditors||October 31, 2015|
|Sanitary transportation of food||March 31, 2016|
|Intentional adulteration/food defense||May 31, 2016|
The FDA agreed “in good faith” to issue the final rules by the above deadlines. The dates provided are dates by which FDA will submit the final rule to the Federal Register for publication, rather than the dates by which the final rule will be published. However, the ruling permits FDA to seek further extensions of any of the above deadlines through written agreement of the parties and notice to the court if the agency believes in good faith that it cannot meet them. If the parties are unable to agree on an extension, FDA may seek an extension by filing a motion with the court. FDA would have the burden to prove “good cause and/or exceptional circumstances warranting the delay, and address the effect of the delay on the public health and safety.”
Our colleagues at the California Environmental Law Blog note the General Industrial Storm Water Permit is slated for adoption on April 1, 2014. Everyone in the California food industry from owners of feedlots to operators of manufacturing facilities will find this very important and should follow developments as Ryan Waterman and Missy Foster report on them.
This week, Consumer Advocacy Group (CAG), a non-profit organization that files numerous Proposition 65 (Prop 65) lawsuits each year, issued notices of violation alleging that 15 companies violated California law by selling rice containing arsenic (and in some instances, lead) without a Prop 65 warning. The notices targeted a wide a range of companies, from small family-owned rice producers, to regional grocery chains and cooperatives. The same organization, CAG, issued a handful of similar notices to other companies in late 2013, also alleging the presence of arsenic in rice products sold in California without a Prop 65 warning.
For more information on these notices, including potential defenses that may apply, see my extended blog post at: http://www.californiaenvironmentallawblog.com/agribusiness/new-wave-of-prop-65-notices-target-rice-industry/
While standing in front of a tractor at Michigan State University (the first land-grant university) on Friday, February 7, 2014, President Obama signed the long awaited $956 billion farm bill into law. The 2014 Farm Bill, what some have called a “jobs bill,” an “innovation bill,” a “research bill” and a “conservation bill,” passed in the House on January 29, 2014 with a vote of 251 to 166. The new five-year farm bill later advanced toward final passage on Tuesday, February 4, 2014 after a strong bipartisan Senate vote. According to FarmPolicy.com, “Lawmakers passed the sprawling legislation this week after four years of bitter arguments over farming subsidies and Republican efforts to reduce financing for food stamps. The final 950-page bill replaces direct crop payments with an insurance program and trims $8 billion from food stamps over the next decade.”
The farm bill is a massive piece of omnibus legislation that tends to make headlines every five to seven years when it is renewed by Congress. The first farm bill, the Agricultural Adjustment Act of 1933, was originally developed under President Franklin Delano Roosevelt’s New Deal as an emergency measure for farmers during the Great Depression to address plummeting commodity crop prices. During that time, the law essentially paid farmers to not grow food on a certain percentage of their land in order to prevent overproduction and balance supply and demand. In addition, the federal government bought and stored large quantities of grain in order to stabilize crop prices. The early law also included a nutrition program — the precursor for the supplemental nutrition assistance program (SNAP) — to feed the hungry.
Since then, agriculture in the U.S. as well as government policies concerning agriculture have changed dramatically. Yet despite these changes, the government continues to play a major role in managing risks within the agricultural industry. The modern day farm bill now addresses a wide variety of issues including nationwide hunger, rural broadband service, soil erosion, lack of credit and unfair export practices. For instance, the 2008 Farm Bill contained 15 distinct titles, including Commodities, Conservation, Trade, Nutrition, Rural Development, and Energy, among others.Continue Reading...
The U.S. Food and Drug Administration (FDA) issued its proposed rule on sanitary transportation under the Food Safety Modernization Act (FSMA) that would require certain shippers, receivers, and carriers who transport food by motor or rail vehicles to take steps to prevent the contamination of human and animal food during transportation. The proposed “Sanitary Transportation of Human and Animal Food” rule, the seventh and final major rule central to the food safety framework under FSMA was published in the Federal Register on February 5, and will remain open for public comment through May 31, 2014.
Over the past few decades, there have been reports of foodborne illness outbreaks due to food products becoming contaminated during transportation as a result of insanitary transportation practices. In 2009, an FDA research group identified several areas where food may be at risk for physical, chemical, or biological contamination during transport and storage, including:
- Improper refrigeration or temperature control;
- Improper packing of transportation units or storage facilities;
- Improper loading and unloading practices, conditions, or equipment;
- Poor pest control in transportation units or storage facilities;
- Lack of training and/or knowledge of food safety issues;
- Poor transportation unit design and construction;
- Inadequate maintenance for transportation units or storage facilities, resulting in roof leaks, gaps in doors, and dripping condensation or ice accumulations;
- Poor employee hygiene;
- Inadequate policies for the safe and/or secure transport or storage of foods;
- Improper handling and tracking of rejected products; and
- Improper holding practices for food products awaiting shipment or inspection.
Despite reports of unsanitary transportation practices, FDA deputy commissioner for foods and veterinary medicine Michael Taylor explained that the likelihood of contracting an illness caused by these practices is slim. He recently wrote on the FDA’s blog, “Truthfully, it’s uncommon for a foodborne illness to be caused by contamination during transportation. But we have received reports of unsanitary practices, and we want to minimize this potential source of illness.”Continue Reading...
Alternative Product Labeling: Will "Simply" Changing Your Brand Protect Your Company From False Advertising Claims?
For the past few years, there has been a steady, if not increasing, stream of class action lawsuits filed against various food and beverage manufacturers and retailers alleging misbranding and false advertising due to the presence of “All Natural” claims. The companies sued in these cases range from major manufacturers and retailers to small private label suppliers. Typically, these consumer class actions typically allege that the products are falsely marketed as “natural” because they contain synthetic, artificial or processed ingredients. Products that bear an “All Natural” claim but contain ingredients anywhere from ascorbic acid (vitamin C) to zinc oxide have been challenged on false advertising grounds.
In light of the risk of litigation around the use of “All Natural” claims, some companies have begun reassessing statements and claims on their product labels and are taking a new approach to their marketing and advertising. One such company is PepsiCo. Recently, the company changed its “Simply Natural” line of Frito-Lay chips to just “Simply,” and its “Natural Quaker Granola” is now marketed as “Simply Quaker Granola.” Other large food companies, like Ben & Jerry’s, Breyers, and Campbell Soup Company, have also dropped the word “natural” from its new packaging.
However, replacing the word “natural” with a word like “simply” may not necessarily be a safe harbor. In 2003, the Center for Science in the Public Interest (CSPI) petitioned the Food and Drug Administration (FDA) to take regulatory action to prohibit The J.M. Smucker Company from making deceptive and misleading labeling claims that misrepresent the amount of fruit in Smucker’s “Simply 100% Fruit” spreadable fruit products. CSPI argued that the products contained more fruit syrup than fruit and that the syrups were actually made from apple and pineapple juice rather than the fruit named on the principal display panel.
In order to stave off litigation, food and beverage companies should carefully evaluate the claims of their product labels. For instance, is it worth the risk to use the work “natural” in product labeling and advertising? According to Stoel Rives attorney Melissa Jones, a trial lawyer who frequently counsels food and beverage companies faced with “All Natural” false advertising claims, it might not be. Melissa writes:
Although a few of the “All Natural” class action lawsuits have been dismissed at an early stage of the litigation, most courts have been unwilling to grant motions to dismiss entire cases and at least some of the claims usually proceed to further litigation or are resolved through settlement. The expense to companies that are sued in these cases is, not surprisingly, substantial, with settlements requiring payments of several million dollars.
That said, the alternative to “natural” labeling, such as the use of a word like “simply,” might not be litigation-proof either. Companies should conduct an intensive review of product ingredients to ensure compliance with labeling regulations and determine whether the ingredients and labeling claims are likely to result in an unwanted lawsuit.
I don't think we need a lot of scientific research to determine why people drink soy milk, almond milk and coconut milk. I'll save some time and list them, not in any particular order:
- They are lactose-intolerant
- They are living a vegan lifestyle
- They prefer the taste to cow's milk
- They prefer the nutritional profile to cow's milk
All four of these reasons have one thing in common: they depend on the consumer understanding that soy milk, almond milk and coconut milk are not cow's milk. So why on God's green earth did someone sue claiming that by labeling the products as soy milk, almond milk and coconut milk, they were confused into thinking the products contained cow's milk?
I will not cast aspersions, because I don't need to. U.S. District Judge Samuel Conti of the Northern District of California took care of this for me.
The case was Ang v. Whitewaves Food Co., and it involved two issues, one of which we won't get into at all: the question of whether evaporated cane juice is "sugar". The other was the claim that by labelling products as soy milk, almond milk and coconut milk, the producers of these products violated the "standard of identity" for milk. The problem is that the regulation they claim "defines" milk is not its standad of identity at all.
The regulation the point to, 21 CFR 131.110(a), provides, "Milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows." But since we actually are capable of reasoning and using language in a non-mechanical way, we can readily understand that this is not the definition of "milk." This is a definition of milk, what you might call the default definition. When we say "milk" without an adjective, in a food context, we mean cow's milk. Milk in a dairy case that says only "milk" is assumed to be cow's milk, and indeed it had better be, or it is likely mislabeled.
But within the same set of regulations that include this definition are a whole bunch of definitions that make it clear that the FDA is not telling anyone that the word "milk" must only apply to cow's milk, despite the plaintiffs' contentions. For example, in the definition of "roquefort cheese", a cheese that cannot be made from cow's milk, the milk must be "of sheep origin", despite a cross-reference to a regulation that refers only to cow's milk.
The court, without looking at my little roquefort definition, reaches the same conclusion:
Moreover, it is simply implausible that a reasonable consumer would mistake a product like soymilk or almond milk with dairy milk from a cow. The first words in the products' names should be obvious enough to even the least discerning of consumers. And adopting Plaintiffs' position might lead to more confusion, not less, especially with respect to other non-dairy alternatives such as goat milk or sheep milk.
On that basis, the court found that the claims under state law were preempted, because federal law generally prohibits states from imposing labeling requirements inconsistent with federal regulations.
The court wasn't done with the plaintiffs, however. Even if not preempted, the court held, citing the famous Crunchberry case we blogged about here, the plaintiffs' claims were simply not plausible.
Plaintiffs essentially allege that a reasonable consumer would view the terms "soymilk" and "almond milk," disregard the first words in the names, and assume that the beverages came from cows. The claim stretches the bounds of credulity. Under Plaintiffs' logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.
As I said at the outset, these products exist as a substitute for cow's milk for various reasons that give consumers a choice of beverage. No one seeks out these products assuming they are getting cow's milk; they seek them out because they are seeking alternatives to cow's milk. Judge Conti, who is a 91-year old senior U.S. District Judge appointed by Richard Nixon, deserves credit for so efficiently seeing through the plaintiffs' claims.
Our distinguished alumnus, founder and former fearless leader, Ken Odza, has sent out an invitation to a FREE ABA Roundtable this coming Thursday, December 12.
The topic is criminal prosecutions of food companies and their officers.
Contemplaying how one might become the subject of a prosecution may not exactly something that will fill you with comfort and joy this holiday season, but the topic is obviously both timely and important.
You can sign up HERE.
Did I mention it is free?
Of particular interest were the mix of goods, the markup. the volume he buys each week and that he dropped the "P" from Pirate Joe's when he was first sued.
My real question is what would happen if I walked into my local Trader Joe's (and I'm a big fan) wearing one of his "I'm Shopping for Pirate Joe's" t-shirts.
Following up on our recent post here on the FDA proposing that trans fats no longer be recognized as "generally accepted as safe" and the potential ensuing ban, I had the opportunity last week to speak with Colin O'Keefe of LXBN on the issue. In the brief interview, I share my thoughts on how the FDA arrived at this point and explain why I believe the industry is prepared for a move away from trans fats.
Sad news out of Oregon.
Much of the work of detecting the cause of outbreaks is art, not science, and by all accounts he was an artist.
Recently, there have been both positive and negative developments in California regarding "All Natural" consumer class action litigation. By way of background, these cases are typically brought under California's Unfair Competition Law (Bus. & Prof. Code §17200), False Advertising Law (Bus. & Prof. Code § 17500) and Consumer Legal Remedies Act (Civ. Code §1750) regarding alleged false and misleading labels on food and beverage products.
Plaintiffs have begun to expand the focus of this litigation into new industries, including cosmetics, personal care products, and home cleaning supplies. The list of challenged ingredients also continues to expand. Additionally, some plaintiffs are pursuing claims simply where the product label contains the term "natural," even if it did not state "100% Natural” or "All Natural.”
On the other hand, there have been a handful of recent court decisions demonstrating that a motion to dismiss these consumer class actions can succeed, including under the “reasonable consumer” test, the primary jurisdiction doctrine and standing. This is a positive trend in California, given that in many earlier cases courts routinely denied motions to dismiss, leaving defendants with two bad options—further litigation or costly settlement.
For more information on this topic, including a list of the ingredients often challenged in these lawsuits, see my article, "All Natural: Label Making: Are You a Class Action Target in California."