Currently browsing posts about: Lawsuits

I am not a litigious person, so I rarely pay attention to lawsuits, but this notice caught my eye:

Chobani sued by Danone over high-protein yogurt claims:  The Oikos maker said its rival is engaging in “unfair competition and consumer deception” to make its product more appealing to shoppers.

Danone says Chobani is inflating the amount of protein in its yogurt.

The food giant said on Monday that Chobani is manipulating the serving size on its 32-ounce containers of Chobani 20G Protein to inflate the protein content. Danone alleges that in order to claim 20 grams of protein per serving, Chobani sets its serving size at 6.7 ounces instead of the industry standard of 5.3 ounces…If Chobani followed the FDA’s serving-size rules for its 32-ounce containers, the lawsuit said, it would be able to claim only 18 grams of protein per serving — below the key 20-gram threshold for high-protein yogurts.

This may seem absurd, but wait!  This may be the fourth lawsuit between these companies.

What I find particular silly about all this is that it is about protein, a nutrient that has never been a problem in American diets and still is not.  Most people get way more than they need.

But protein is what sells food products these days, so companies care about it a lot.

The context for all this is that our food supply provides roughly twice the calories needed by our population, thereby making the food industry hugely competitive, especially at a time when GLP-1 drugs, inflation, and concerns about ultra-processed foods are cutting into food sales.

Danone must think that protecting its market share is worth the legal challenge and expenditure.

The Supreme Court has just handed Bayer, which owns Monsanto, a “landmark victory.”  The decision may well overturn thousands of pending cases of people suing Bayer in the belief that the herbicide glyphosate (Roundup) caused them to develop non-Hodgkin’s lymphoma.

The Supreme Court’s ruling in Monsanto v. Durnell states its premise in the first paragraph:

Monsanto Company manufactures and distributes Roundup, a glyphosate-based herbicide designed to control weeds. The EPA has repeatedly evaluated glyphosate and repeatedly concluded that glyphosate is not likely to cause cancer. EPA’s assessment is shared by many other regulatory bodies around the world. In accordance with EPA’s view that glyphosate is not likely to cause cancer in humans, EPA has not required labels on glyphosate-based pesticides like Roundup to include a cancer warning.

Ergo: If the EPA says glyphosate is not carcinogenic, glyphosate is not carcinogenic.

An advocacy group, Protect Our Care, organized an emergency virtual event in Washington, DC, to condemn this “deeply misguided” decision. 

The Supreme Court ruled in favor of industry and the Trump administration by effectively granting Donald Trump’s big chemical industry donors blanket immunity from state-based liability claims involving the cancer-linked glyphosate chemical found in Roundup pesticides. In the administration’s latest betrayal of the MAHA movement, Trump’s DOJ filed an amicus brief in support of Monsanto – now owned by Bayer — and Trump’s Principal Deputy Solicitor General argued alongside the chemical maker in court. The decision is also a major affront to cancer survivors, now denied a pathway to damages for any injuries and financial costs they may have endured following exposure to glyphosate. 

At the event, Senator Cory Booker said:

Today’s a really a grievous day where the people of the United States saw that their Supreme Court corrupted by massive gifts from billionaires and people of interest in matters before them. A court that takes gifts, from RVs to tuition to lavish gifts, sided with the wealthy, powerful multinational corporation reversing years and years of precedent, dismissing ultimately effectively hundreds and hundreds, in fact 1000s of cases. They sided with the big multinational corporations against the people. Worse than that, compounding that, is a president who said he stood with the MAHA movement has betrayed that movement by now siding with the big corporations and those who are poisoning people in our country.

Why is this infuriating?

(1) The EPA relied on evidence developed by Monsanto: The EPA Relied on an Influential Glyphosate Study Even After Learning Monsanto Was a “Ghost Writer”

The US Environmental Protection Agency has known for nearly a decade that an influential 2013 scientific paper that concluded glyphosate is safe was actually ghostwritten by developer Monsanto. But the agency never informed the public and continued to rely on it, according to an EPA memo obtained by Mother Jones and revealed here for the first time.

(2)  Monsanto created its own evidence for the safety of glyphosate: Merchants of Poison: How Monsanto Sold the World on a Toxic Pesticide.

(3)  The Trump administration’s support of Bayer was aided by officials who came from Bayer’s law firms.

(4)  Getting glyphosate out of the food supply has been a stated objective of the MAHA movement and of HHS Secretary, RFK, Jr (although he later changed his stance)

One more thing: let’s not be taken in by President Trump’s executive order “advancing regenerative agriculture.”  This is really about biofuel production: “The new framework creates significant opportunities for America’s leading biofuel feedstock producers.”

By regenerative, this order refers to “cover crops, improved nutrient management, and conservation tillage—including no-till and reduced tillage.”

This is not my idea of the meaning of regenerative.  I much prefer the approach of Real Organic Project:   “is a farmer-led, soil-grown, pasture-raised WHOLE farm certification with labor protections. “

If a farm uses glyphosate, it’s not regenerative, not matter how much no-till it uses.

This one is not over yet.  At least one lawsuit has been filed to disclose how all this happened.

Stay tuned.

Yesterday, a US District Court in the District of Columbia ruled that the USDA violated its own laws when it approved SNAP food restriction waivers allowing states to ban purchases of sodas and some other foods using their Electronic Benefit Cards (they can still buy those foods using their own money).

The decision makes riveting reading, as shown in these excerpts.

USDA used the wrong statute

The section of the statute the Secretary relies upon as authorization to approve the projects at issue, 7 U.S.C. § 2026(b), does not cover projects aimed towards improving the health of SNAP recipients, and the agency sidestepped the section of the statute that does address those projects, section 2026(k) – which sets out strict requirements they must meet – entirely.

USDA waived more than was allowed

With her solicitation and approval of the pilot projects in this case, the Secretary purports to waive not just a mere administrative or technical obstacle, but the very definition of “food” as it was laid down by Congress.  Neither the USDA nor the states can force this square peg into a round hole to avoid the plain language of the statute and the requirements of 2026(k).

USDA did not follow its own procedures

Defendants also failed to abide by the notice requirement of their own regulation, 7 C.F.R. § 282.1(b), which requires the USDA to post notice of pilot projects in the Federal Register thirty days before implementation if they are likely to have a significant impact on the public.  The agency’s terse statement that the pilot projects would not have a significant impact 3 on the public is entitled to little deference and it is directly contrary to the facts in the administrative record.

These reasons are strictly procedural

The Court’s analysis should not be taken as a comment on whether the pilot projects are a good idea or not.  That is a question of policy that is not before the Court.  The federal defendants and the states may have a genuine desire to improve the health of SNAP households by encouraging healthy choices at the store, and they can take lawful steps to meet those goals.  But what they cannot do is violate the law and their own regulations along the way.

The waivers are now remanded (sent back to USDA) and vacated (annulled).  The judgment says orders to USDA will follow.

In the meantime, Jerry Hagstrom reports that the USDA is downgrading administrative oversight of SNAP.

The Trump administration ended the Agriculture Department mission area status of the federal nutrition programs as part of its broad reorganization, according to a little-noticed explanation published alongside the establishment of the Food and Nutrition Administration.

Eliminating the mission area also apparently allows for the elimination of the positions of agriculture undersecretary for food, nutrition and consumer services and the deputy administrator.

What does this mean?  As Hagstrom explains,

A House Democratic aide said that aligning the structure of the nutrition programs with other benefit programs would make it easier to move FNA to HHS if the Trump administration should try to follow the Project 2025 guidance.

Cindy Long, a deputy undersecretary for food, nutrition and consumer services in the Biden administration and before that the administrator of Food and Nutrition Service, said in an email, “This change would represent an abdication of the secretary’s responsibility for FNS programs, which comprise over 75% of the USDA budget.” (Translation: this means SNAP).

As I’ve said previously, the USDA’s SNAP waivers have nothing to do with health, but everything to do with getting more people off of SNAP rolls.

Why do I think this?  Here’s the headline from ProPublica: More Than 770,000 Children Are No Longer Receiving SNAP Benefits After Trump Changes Federal Food Program.

____

Thanks to Cathy Nonas, Jerry Mande, and Jerry Hagstrom for providing documents and info for this post.

Here’s the chronology:

In June, Texas passed the “Make Texas Healthy Again” bill which required food companies to put warning labels on products containing any of 44 ingredients such as artificial additives, dyes, and chemicals.  As I wrote at the time, the label would have to say:

WARNING: This product contains an ingredient that is not recommended for human consumption by the appropriate authority in Australia, Canada, the European Union, or the United  Kingdom.

In December, the American Beverage Association, joined by other food industry groups, sued Texas over this.

In February, a federal district court issued an injunction on First Amendment grounds.

Also in February, Texas issued a final rule on the labeling law.  But this says that “ingredients considered generally recognized as safe or determined to be safe by the FDA or USDA are not subject to the rule requirements.”

Oops.  I’m pretty sure that most of those 44 ingredients are considered GRAS by the FDA.

It will be interesting to watch what the courts decide on this one too.

Interesting times we live in.

The Make America Healthy Again (MAHA) movement now counts 22 states as having passed laws eliminating sodas and sometimes other sweet foods from what SNAP recipients are allowed to buy with their electronic benefit cards.

I am often asked what I think about these laws.  I can argue them either way.

Pro: Even with these restrictions, SNAP recipients can continue to buy sugar-sweetened beverages with their own money; the government should not support purchases of demonstrably unhealthy drinks.

Con: These laws are not about improving the health of SNAP recipients; they are about punishing the poor for being poor, further stigmatizing them, and encouraging them to withdraw from benefits to which they are entitled.

I have long been a supporter of pilot research projects (USDA “waivers”) to see whether restrictions like these help SNAP recipients eat more healthfully.  But these laws are not designed that way.  I just hope their effects are being researched adequately.

Now, the laws are being challenged in court. The lawsuit calls for a halt to waivers in Colorado, Iowa, Nebraska, Tennessee and West Virginia – five of the 22 states to which USDA has granted them.

The suit comes from the National Center for Law and Economic Justice, an advocacy group focused on equity, and Shinder Cantor Lerner, an anti-trust law firm.

The suit alleges that USDA is:

• Trying to shrink SNAP by authorizing a patchwork of state laws.
• Changing the statutory definition of food without authority or notice.
• Preventing recipients from buying foods they need to maintain health.
• Confusing SNAP recipients about what they can buy.
• Increasing burdens on retailers, thereby adversely affecting SNAP recipients.

I can’t help wonder whether the food industry is behind all this.

Calley Means, who advises Robert F. Kennedy, Jr, says no.  He blames the Democrats.

What are we to make of all this?

I guess we wait to see what emerges during the discovery process and what the courts decide.

What a strange and complicated time this is.

This week, I’m going to be writing about lawsuits against food companies, starting with the class action lawsuit filed against David Protein, which states that the company misrepresented the calorie and fat content of its bars.

Here is a Nutrition Facts panel from the company’s website.

The FDA allows several methods for counting calories in food products, one of which is to apply Atwater values, 4 calories per gram for protein and carbohydrate, and 9 calories per gram for fat (this is why fat is fattening).

Doing that here gives:

Fat: 2.5 x 9     =    23 (rounded off)

Carbs: 12 x 4  =    48

Protein: 26 x 4 = 104

Total calories  =   175

This is higher than what’s on the label.  But calories are difficult to measure accurately, so the FDA allows a 20% margin of error.

But the difference must have gotten the attention of the plaintiffs.

They took the product and burned it in a bomb calorimeter, a device that measures the heat produced when foods are burned to completion.  This heat is equivalent to calories, when corrected for the nitrogen in protein.

Here is what the plaintiffs got when they did this.

Wow.  That’s quite a difference.

But David’s has a rebuttal.

…bomb calorimetry is not the right testing method for determining calories in foods containing certain ingredients, such as dietary fiber, certain sweeteners, and, critically for us, fat substitutes like esterified propoxylated glycerol (EPG)…If you burn ingredients like complex carbohydrates, fiber or EPG in a calorimeter, these ingredients would appear to deliver far more calories than the body actually metabolizes.

This took me right to the ingredient list (see above)

PROTEIN SYSTEM: MILK PROTEIN ISOLATE, COLLAGEN, WHEY PROTEIN CONCENTRATE, EGG WHITE. | BINDING SYSTEM: MALTITOL, GLYCERIN, ALLULOSE, TAPIOCA STARCH, SOY LECITHIN. | FAT SYSTEM: MODIFIED PLANT FAT (EPG), COCONUT OIL. | FLAVOR SYSTEM: UNSWEETENED CHOCOLATE, PEANUT FLOUR, NATURAL AND ARTIFICIAL FLAVOR, PEANUT EXTRACT, SALT, DUTCH PROCESS COCOA POWDER, SUCRALOSE, ACESULFAME POTASSIUM.

My first question: Why would anyone want to eat a collection of concocted ingredients like this with hardly any of them recognizable as food?  These bars are quintessential ultra-processed products.

Whatever.  EPG is esterified propoxylated glycerol, a fat substitute. It provides less than one calorie per gram.

Here’s my quote from the New York Times

Dr. Marion Nestle, a professor emerita of nutrition and food studies at N.Y.U., told DealBook that the plaintiffs’ claims were based on counting calories from a “concocted ingredient that’s not absorbed” by the body. The lawsuit was likely to be dismissed, she added.

Not that Nestle was weighing in on the healthfulness of David bars: “Whether anyone should be eating non-absorbable fat is another discussion,” she said.

Precisely.

San Francisco’s city attorney has sued major food companies for marketing ultra-processed foods (UPF) that make people sick.

The lawsuit: COMPLAINT FOR: VIOLATION OF CALIFORNIA UNFAIR COMPETITION LAW AND PUBLIC NUISANCE

The arguments

I. UPF are dangerous: “No reason exists to believe that humans can fully adapt to these products.”

II.  UPF-like tobacco and illegal drugs–are addictive.

• UPF cause compulsive use in the same ways as other addictive substances
• UPF are psychoactive substances
• UPF are reinforcing

III. Defendants designed UPF to be addictive to drive sales and profits.

IV. Defendants have created a public health crisis, especially for children.

V.  Defendants have deliberately targeted kids (harmful dyes, aggressive marketing, disproportionate targeting).

VI.  Defendants actively conceal the dangers of UPF.

VII.  UPF have contributed to a public health crisis in San Francisco.

This one will be fun to watch,

Resources

• Press conference: City attorney announces legal action
• State of California complaint
• San Francisco City Attorney’s Office: Chiu sues largest manufacturers of ultraprocessed foods
• New York Times: San Francisco will sue ultraprocessed food companies
• Civil Eats: MAHA figure touts San Francisco laawsuit against food companies

The Dietary Guidelines Advisory Committee may not think there is much to ultra-processed foods (UPF), but companies making them have just been served with a lawuit.

I learned about this from a tweet (x) from Carlos Monteiro, the Brazilian public health professor who coined the UPF term.

CMonteiro_USP (@Carlos A. Monteiro) posted: A first-of-its-kind lawsuit against 11 UPF industries alleging they engineer their UPF products to be addictive with details on the actions taken to target children including internal memos, meetings & the research conducted to create addictive substances.

The lawsuit, filed by several law firms, is aimed at Big Food: Kraft, Mondelez, Post, Coca-Cola, PepsiCo, General Mills, Nestle, Kellanova, WK Kellogg, Mars, and Conagra.

The suit charges that these firms, through their deliberate marketing, are making people sick.

Due to Defendants’ conduct, Plaintiff regularly, frequently, and chronically ingested their UPF, which caused him to contract Type 2 Diabetes and Non-Alcoholic Fatty Liver Disease Plaintiff is now suffering from these devastating diseases, and will continue to suffer for the rest of his life.

The suit makes interesting reading.

Some examples:

• Big Tobacco companies intentionally designed UPF to hack the physiological structures of our brains.  These formulation strategies were quickly adopted throughout the UPF industry, with the goal of driving consumption, and defendants’ profits, at all costs.
• The same MRI machines used by scientific researchers to study potential cures for addiction are used by UPF companies to engineer their products to be ever more addictive.
• Big Tobacco repurposed marketing strategies designed to sell cigarettes to children and minorities, and aggressively marketed UPF to these groups.
• The UPF industry now spends about $2 billion each year marketing UPF to children.
• UPF increase the risks of disease because they are ultra-processed, not because of how many grams of certain nutrients they contain or how much weight gain they cause. Therefore, even attempts to eat healthfully are undermined by the ultra-processed nature of UPF. One cannot evade the risks caused by UPF simply by selecting UPF with lower calories, fat, salt, sugar, carbohydrates, or other nutrients.
• The UPF industry is well aware of the harms they are causing and has known it for decades. But they continue to inflict massive harm on society in a reckless pursuit of profits.

Can’t wait to see what happens with this one.  Stay tuned.

Resources

Consumer Federation of America: “Ultra-processed Foods: Why They Matter and What to Do About It.”

With government officials reluctant to issue advice on ultra-processed foods (UPFs), Consumer Federation of America aims to raise awareness about research on UPFs, explain the leading theories of how they harm health, and build support for public policies to reduce harms from UPFs in our diet.

The report pushes back on arguments that researchers have not consistently defined UPFs, or that the categorization lacks scientific rigor. In fact, researchers have operationalized the “Nova classification” system behind UPFs in a largely consistent manner, defining foods based on whether they contain ingredients that are “industrial formulations” or “rarely used in home kitchens,” with little serious disagreement about which ingredients should be considered “ultra processed.” Consumers can take CFA’s online quiz to test their knowledge of which ingredients are markers of “ultra processing.”

New research: Trends in Adults’ Intake of Un-processed/Minimally Processed, and Ultra-processed foods at Home and Away from Home in the United States from 2003–2018.  J Nutr 2024, https://doi.org/10.1016/j.tjnut.2024.10.048.  The data show that 50% or more of calories are consumed from UPF at home, away from home, and by pretty much everyone.

New research: Hagerman CJ, Hong AE, Jennings E, Butryn ML. A Pilot Study of a Novel Dietary Intervention Targeting Ultra-Processed Food Intake. Obes Sci Pract. 2024 Dec 8;10(6):e70029. doi: 10.1002/osp4.70029.  Behavioral interventions to reduce UPF intake cut calories by about 600 calories per day.

My post summarizing the three studies demonstrating that diets high in UPF induce intake of an excess of 500, 800, and 1000 calories per day.