Currently browsing posts about: Lawsuits

This is one of FoodNavigator-USA’s special edition collections of articles on similar themes, in this case food labeling and lawsuits over labeling issues.  These are a quick way to get up to speed on what’s happening from a food industry perspective .  FoodNavigator introduces this collection:

Food and beverage companies have faced a tsunami of false advertising lawsuits over the past five years. But how big of an issue is this for the industry, who has been targeted, and what strategies are working, both for plaintiffs and defendants in these cases? In this special edition, we also look into labeling issues and trends, from healthy, Paleo and grass-fed claims to NuTek’s potassium salt petition.

• FOOD LITIGATION 101: Are you up to speed?  There have been hundreds of class action lawsuits directed against food and beverage companies in recent years over everything from evaporated cane juice to Non-GMO claims. But has the false advertising litigation trend peaked, and if not, what are the new areas of vulnerability for food companies? .. Read
• More farm-related claims to appear on pack, Innova Market Insights forecasts: Now that clean label has moved on from being a trend to becoming “the new rules of the game,” Innova Market Insights predicts more brands will rely on ‘farm to fork’ claims and bucolic imagery as a differentiator… Read
• Paleo certification requests have doubled annually, scheme embraced by ‘household names,’ says Paleo Foundation: Demand for Paleo-certified products are on the rise. But is the diet – and the certification scheme – based on sound science? We chat with Paleo’s critics and proponents to get the inside scoop… Read
• Dairy from cows fed GM feed is not ‘all-natural’, alleges lawsuit vs Dannon – but will it fly?  Has the FDA’s probe into ‘natural’ claims on food labels put a stop to the tidal wave of false advertising lawsuits engulfing food manufacturers? Not if a new complaint against Dannon is anything to go by, which also delves into the thorny issue of GMOs, another area currently being scrutinized by regulators. .. Read
• Future of Nutrition Facts, menu labeling & food safety are unclear under Trump, CSPI says: While President-elect Trump’s position on food policy is relatively unclear still, changes to the exhaustively researched and intensely debated Nutrition Facts label, menu labeling rule and food safety regulations could all be on the chopping block under the new administration, warns a top nutrition policy expert… Read
• Comments in FDA docket reveals consumers’ shifting perceptions of ‘healthy’: If the FDA’s decision to wade into the ‘natural’ debate seemed like an act of sadomasochism, its decision to re-examine the criteria underpinning ‘healthy’ claims on food labels looks set to be equally painful, judging by the first wave of public comments filed in the docket… Read
• FDA hints at how conventional foods can make structure/function claims: For the first time, FDA weighs in on what marketers must have on hand to support claims about conventional foods’ direct impact on consumers’ bodies. .. Read
• Soup-To-Nuts Podcast:The rise & future potential of grass fed claims: Grass-fed claims on products are a beacon for consumers who are health-conscious, want minimally processed food and care about animal welfare, and as such manufacturers increasingly are using them on products across categories and channels to drive up sales sharply… Listen now
• ProTings closes $1.2m financing round, changes name to Protes after spat with Original Tings: Brooklyn-based pea protein chip pioneer Proformance Foods has closed a $1.2m financing round led by a leading CPG company, and changed its brand name from ProTings to Protes following a trademark dispute with B&G Foods, which owns the Original Tings brand… Read
• Vox Pop: Consumers had this to say about GMO labeling…On the heels of President Barack Obama signing into law a federal bill requiring the disclosure of genetically modified organisms (GMOs) on packaged food and beverage products, we at Beverage Daily and FoodNavigator-USA asked consumers at a downtown Chicago farmers market what they thought of GMOs… Watch now
• Are ‘GMO-free’ (as opposed to ‘non-GMO’) claims legally defensible? As the Non-GMO Project states on its website, ‘GMO-free’ claims are “not legally or scientifically defensible due to limitations of testing methodology” coupled with cross-contamination risks. In future, however, that could change as testing methods become more sophisticated, predicts Clear Labs, a Californian start-up which recently hit the headlines after identifying human and rat DNA in hamburgers [albeit within safe parameters]… Read
• Label Insight: Your SmartLabel landing pages could become more important than your website or facebook pages: While the SmartLabel initiative has been dismissed by some as an elaborate conspiracy by big food companies to avoid mandatory on-pack GMO labeling statements, it will ultimately have far broader significance – and potentially a huge impact on how consumers view all food and beverage products – predicts product data and image platform Label Insight… Read
• House approves federal GMO labeling bill that nullifies Vermont law: The US House of Representatives has voted to pass a federal GMO labeling bill (306:117 votes) that would pre-empt and nullify all state-led GMO labeling laws including the one that has just come into effect in Vermont. .. Read
• Hampton Creek to settle worker classification lawsuit: Just Mayo maker Hampton Creek – one of a growing number of food companies sued for allegedly misclassifying workers as independent contractors as opposed to employees – is settling its case in order to avoid the hassle and expense of protracted litigation, court documents show… Read
• Kellogg, Post & General Mills urge courts to toss ‘meritless’ sugar lawsuits: Kellogg, General Mills and Post Foods have urged the courts to ditch high-profile lawsuits over the sugar content in their cereals, on the grounds that their claims are pre-empted by federal law and that no reasonable consumer would find their labels to be false or misleading… Read
• Dole Foods 9th Circuit ruling reignites all-natural lawsuit, ’emboldens plaintiff’s bar’: The Ninth Circuit Court of Appeals has reversed (in part) a lower court’s ruling that Dole Foods’ ‘all natural fruit’ labeling likely isn’t deceptive, resurrecting a four-year-old lawsuit, and giving fresh ammunition to plaintiff’s attorneys pursuing ‘all-natural’ cases… Read
• Parties clash over Welch’s ‘made with real fruit’ fruit snack label claims: Reasonable consumers may well be misled by the packaging of Welch’s fruit snacks, a magistrate judge has concluded, prompting a lengthy rebuttal from the defendants in court documents filed this month. .. Read
• Shoppers aren’t confused by our labels, Chobani tells court: ‘Plaintiffs count on a consumer who is a veritable fool’: A false advertising lawsuit alleging that Chobani’s labels are confusing and deceptive, paints American consumers as credulous fools unable to apply common sense when they go shopping, argues the yogurt maker in court documents urging the judge to toss the case… Read
• GMA to FDA: Sodium reduction guidance must be re-worded or industry will face a tidal wave of ‘frivolous litigation’: Two years isn’t enough time for food manufacturers to make the kind of reductions in sodium that the FDA is asking for, says the Grocery Manufacturers Association (GMA), which also urges the agency to tweak the wording of its guidance in order to avoid “a wave of frivolous litigation.”.. Read
• American Bakers Association backs ‘potassium salt’ petition: It sounds more clean label: The American Bakers Association (ABA) has joined the CSPI, Unilever, and other food manufacturers in voicing its support for a citizen’s petition asking the FDA to permit ‘potassium salt’ as an alternate name for potassium chloride on food labels, while the Salt Institute remains resolutely opposed… Read

Jennifer L. Pomeranz.  Food Law for Public Health.  Oxford University Press, 2016.

I’m told that food law is the hottest area in legal education right now.  At a time when law schools and lawyers are struggling, food law offers opportunities.  Food issues are so controversial that they constitute a full employment act.

Jennifer Pomeranz is my colleague at NYU.  Her book could not be more timely, and I was delighted to give it a blurb:

If you want to know how laws and regulations affect what you eat, how those laws are made, and why they cause so much controversy, Food Law for Public Health is a terrific place to start.

OK, everyone is presumed innocent until proven guilty, and executives of the Peanut Corporation of America (PCA) are getting their day in court, accompanied by an aggressive legal defense.

According to Food Safety News, PCA’s lawyers are claiming that the government’s requests for disclosure documents are so egregious that the case should be dismissed.

Here’s a comment on the case from Eat, Drink, Vote: An Illustrated Guide to Food Politics:

Irony alert: “egregious” is precisely the word I used to describe PCA’s actions related to its Salmonella problems more than a year ago:

I’ve been following this particular food safety tragedy for several years now.  The offenses were so egregious—officials blatantly ignored positive tests for Salmonella, for example—that some kind of punishment seemed warranted.

According to the account in USA Today:

The indictment alleges that PCA officials affirmatively lied to their customers about the presence of salmonella in PCA’s products,” said Stuart Delery, principal deputy assistant attorney general.

Delery also said some officials at PCA, no longer in business, fabricated lab results certifying to customers that the products were salmonella free “even when tests showed the presence of salmonella or when no tests had been done at all.”

If you would like to catch up on this endlessly fascinating case, in which contaminated peanut butter made 714 people in 46 states sick, here’s Food Safety News’ year-old timeline of its events.

Here’s my monthly (first Sunday) Food Matters column from the San Francisco Chronicle. The question (edited) came from a reader of this blog.

Q: You view New York City’s cap on any soda larger than 16 ounces as good for public health. I don’t care if sodas are bad for us. The question is “Whose choice is it?” And what role should the nanny state play in this issue?

A: Your question comes up at a time when the New York State Supreme Court is hearing arguments about whether New York City’s health department has the right to establish a limit on soda sizes.

As an advocate for public health, I think a soda cap makes sense. Sixteen ounces provides two full servings, about 50 grams of sugars, and 200 calories – 10 percent of daily calories for someone who consumes 2,000 calories a day.

That’s a generous amount. In the 1950s, Coca-Cola advertised this size as large enough to serve three people.

You may not care whether sodas are bad for health, but plenty of other people do. These include, among others, officials who must spend taxpayer dollars to care for the health of people with obesity-related chronic illnesses, employers dealing with a chronically ill workforce, the parents and teachers of overweight children, dentists who treat tooth decay, and a military desperate for recruits who can meet fitness standards.

Poor health is much more than an individual, personal problem. If you are ill, your illness has consequences for others.

That is where public health measures come in. The closest analogy is food fortification. You have to eat vitamins and iron with your bread and cereals whether you want to or not. You have to wear seat belts in a car and a helmet on a motorcycle. You can’t drive much over the speed limit or under the influence. You can’t smoke in public places.

Would you leave it up to individuals to do as they please in these instances regardless of the effects of their choices on themselves, other people and society? Haven’t these “nanny state” measures, as you call them, made life healthier and safer for everyone?

All the soda cap is designed to do is to make the default food choice the healthier choice. This isn’t about denial of choice. If you want more than 16 ounces, no government official is stopping you from ordering as many of those sizes as you like.

What troubles me about the freedom-to-choose, nanny-state argument is that it deflects attention from the real issue: the ferocious efforts of the soda industry to protect sales of its products at any monetary or social cost.

The lawsuit against the soda cap is a perfect example. It is funded by the American Beverage Association, the trade association for Coca-Cola, PepsiCo and other soft-drink companies, at what must be astronomical expense.

To confuse the public about corporate profits as a motive, the beverage association enlisted two distinguished civil rights groups – the NAACP and the Hispanic Federation – to file an amicus brief on behalf of its lawsuit.

Never mind that the obesity rate for the communities these groups represent is considerably higher than average in New York City, and that these neighborhoods would benefit most from the soda cap. The amicus brief argues that the soda cap discriminates against them.

The brief, however, neglects to mention that both amicus groups received large donations from soda companies and that the NAACP in particular has a long history of partnership with Coca-Cola.

Financial arrangements between soda companies and ostensibly independent groups demand scrutiny. National and local reporters – bless them – have done just that.

They report, among other connections, that one of the law firms working for Coca-Cola wrote the amicus brief, and that a former president of the Hispanic Federation just took a job with that company.

Last fall, the East Bay Express exposed how the soda industry exploited race issues to divide the electorate and defeat the Measure N soda tax initiative in Richmond. It revealed

that the beverage association not only paid for the successful “grassroots” campaign against Measure N but also encouraged views of the soda tax as racist.

Driven by this experience, the soda industry is repeating this tactic in New York City.

Is a cap on soda sizes discriminatory against groups working for civil rights? Not a chance.

Public health measures are about alleviating health disparities and giving everyone equal access to healthy diets and lifestyles. This makes public health – and initiatives like the soda cap – broadly inclusive and democratic.

If anything is undemocratic and elitist, it is suing New York City over the soda cap.

In funding this lawsuit, the soda industry has made it clear that it will go to any length to protect its profits, even if it means discrediting the groups that would most benefit from this rather benign public health initiative.

Mayor Bloomberg’s cap on soda sizes at 16 ounces has elicited a hard-hitting, Friday-afternoon (let’s hide it if we can), but otherwise well organized cease-and-desist lawsuit from the soft drink industry.

The suit, New York Statewide Coalition of Hispanic Chambers of Commerce et al. v. The New York City Department of Health and Mental Hygiene et al., is represented by Latham & Watkins, a law firm that often represents the American Beverage Association (ABA), the leading soft-drink trade group and one of the plaintiffs in this case.

Other plaintiffs are the Teamsters Local 812, the Korean-American Grocers Association of New York, the National Association of Theatre Owners of New York State, and—-no surprise—the National Restaurant Association.

These groups are all concerned that the soda cap might encourage people to reduce soda sales (its point, after all).  This would drive down profits for stores, concession stands in movie theaters, restaurants, and the people who distribute sugary beverages.

The basis of the suit includes these complaints [with my comments]:

• The Board of Health does not have the legal authority to cap soda sizes at 16 ounces (only the City Council does): “This case is not about obesity in New York City,” the plaintiffs wrote in the opening sentence of the suit. “This case is about the Board of Health, appointed by the mayor, bypassing the proper legislative process for governing the city.” [Legal experts think that cities do have the authority to regulate public health, witness smoking bans, helmet laws, and seatbelt requirements]
• The cap is a ban on personal freedom. [Nobody is stopping people from buying more soda if they want it]
• Most New Yorkers oppose the soda cap. [Perhaps because of the extraordinarily expensive campaign conducted by the soda industry]
• The cap is “arbitrary and capricious,” because it applies only to some businesses and targets only certain types of beverages: “Delis and hotdog stands are barred from selling a 20-ounce lemonade, but the 7-Eleven a few feet away remains free to sell Big Gulps.”  [The rule applies to all businesses over which the city has jurisdiction, so there is nothing arbitrary about it] 

This lawsuit is clearly about profits, not health.  Let’s hope the Court throws it out.

The first 14 of the documents are available in a zip file here (but only for the next week or so).

I’ve been away for the last couple of weeks, and am just getting to accumulated mail.  I was surprised to find a letter dated June 18 from Angela Wilson, an attorney at Parks IP Law, a limited liability firm specializing in intellectual property rights.

In her letter, which you can read here in its entirety, Ms. Wilson writes:

We represent Energy Brands Inc., a wholly-owned subsidiary of the Coca-Cola company.  Recently, we noticed that Food Politics used the term “vitamin Water” in the article, “New York Plans to Ban Sale of Big Sizes of Sugary Drinks,” which appeared in the June 4, 2012 edition of your publication (see attached).

I’m confused.  The article attached to the letter is my post, “Weight of the Nation: the new “Hunger in America”?, a June 4 reprint of a column I wrote for the San Francisco Chronicle.  It does not refer to “vitamin Water.”

Foodpolitics.com contains an excellent search engine.  I searched my posts for “New York Plans to Ban….”   No post with that title exists.   I looked at posts about Mayor Bloomberg’s proposed ban on large sodas.  My post about the soda initiative contains plenty of references to Coca-Cola, but says nothing about “vitamin Water.”

A search for “vitamin water” turns up 17 posts, the most recent in 2011.  The most relevant is an account of a class-action suit filed against Coca-Cola by the Center for Science in the Public Interest arguing that “Vitamin Water makes sugary drinks that promote obesity but positions these products as healthful because they contain added vitamins and herbs.”

Never mind.  Let’s focus on the matter at hand.  Attorney Wilson’s letter continues:

It appears that the article may have been referring to our client’s VITAMINWATER® brand, but because Food Politics used the phrase “Vitamin Water,” that may not be clear to your readers.  Accordingly, we write to request that your writers [sic] refer to our client’s trademark properly in future stories. [I used sic because I’m the only writer on this site.]

Her letter suggests that I follow some simple guidelines when referring to her client’s trademark.  You might enjoy reading the entire list for yourself, but here’s a short summary:

• DO distinguish our client’s VITAMINWATER® trademark as one word (without a space in the middle) and in all capitals or italics
• DO add the registration symbol (“®”)
• DO follow all references to our client’s trademark with the words “enhanced water”
• DON’T use terms such as “vitaminwater,” “vitamin water,” or “vitamin waters”

Ms. Wilson’s letter concludes: “When you use our client’s name correctly, you help protect the integrity of their [sic] innovative enhanced water product.”

[Why sic?  I’m a professor and can’t help this sort of thing.  “Client” is singular; “their” is plural.  Nouns and pronouns should agree.]

I can only imagine the enormous fees that Parks IP Law and Angela Wilson must be getting from Coca-Cola to get me to refer more precisely to its trademarks.

I’ll try.  I promise.

I’ve been following the legal battles between the Federal Trade Commission (FTC) and the makers of POM juice and other pomegranate juice products with avid interest, mainly because they deal with the credibility of sponsored scientific research.

This week, an administrative law judge ruled that POM violated federal law when it deceptively advertised  its products as able to “treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction.”

The judge ruled that reasonable consumers would interpret the ads as making such claims but that the company had not produced convincing evidence to support them.

The judge’s decision makes entertaining reading for someone like me who enjoys debates about whether sponsorship of scientific studies influences results and interpretation—as evidence shows they most definitely do.

POM has invested more than $35 million in research to prove that pomegranate juice has health benefits.  It has sponsored about 100 studies at 44 different institutions.  At least 70 of these studies were published in peer-reviewed journals.

It is not difficult to design research studies to give sponsors the answers they want and to make sure they are conducted well.  POM is getting the best research that money can buy.

One such study, of the effects of drinking pomegranate juice on myocardial perfusion (MP, blood flow to the heart), was conducted by Dr. Dean Ornish, who runs a preventive medicine institute in California (the quotes come from pages 268-269 of the decision).

The Ornish MP study was originally designed to last 12 months, with measurements at baseline, 3 months, and 12 months.  [The FTC] charges that the study was cut short when the three-month data came in favorably and Dr. Ornish faced cost overruns.

Dr. [Frank] Sacks [expert witness for the FTC] opined that the shortened study period and failure to report the planned duration are inconsistent with widely accepted standards for conduct of clinical trials and undermine any confidence in the findings.

Dr. Ornish testified that the Ornish MP Study was terminated after three months only because the Resnicks did not provide the funding that they had previously committed to this study….[he said the study]constitutes credible and reliable science showing that pomegranate juice lessens the risk of cardiovascular problems.

The judge found evidence on this study and many others conflicting.  He ruled that this level of disagreement about the quality of the research means that the scientific evidence is not good enough to substantiate the claims.

I was interviewed for a story in Business Week about this decision.

This makes it clear why everyone should be suspicious of the results of sponsored studies…POM-sponsored studies produce results favorable to POM.

POM’s owners have their own spin on the decision.

It says the ALJ’s ruling affirms the scientific validity behind the general health benefits of pomegranates and “completely exonerates” POM regarding its claims in broadcast or print interviews.

Let’s be clear what’s at stake here.  According to the decision document, the owners of POM control 18,000 acres of pomegranate orchards.

From September 2002 through November 2010, sales of POM juice alone totaled nearly $248 million (the supplements and other products add more).

The owners must believe that nobody will buy pomegranate juice and supplements for any reason other than health benefits.

Health claims are about marketing, not health.

Let’s hope the FTC can make the decision stick.

I’ve been out of the country for the past week (Panamá, warm and lovely) but have been kept up on the peanut butter outbreak, courtesy of Eric Burkett of Examiner.com.  His posts thoroughly cover events in this latest outbreak of Salmonella typhimurium.  The outbreak is so widespread that the FDA has a special site devoted to it with a useful Q and A.  The FDA warns consumers not to eat any recalled peanut butter or foods made with it (the list is on the FDA site).  Peanut butter in jars seems to be OK, so far.  If you want to see the epidemiology, the CDC has the case-report charts and state maps online.  The lawyers are also getting into the act: Marler Clark is always a source of information about actionable foodborne illnesses, and O’Steen & Harrison also seems to be keeping close track. At issue is where the contamination occurred, where the contaminated peanut butter was distributed, and what other food companies are using this peanut butter.  That this information is not readily available is further evidence of the need for better food safety requirements, oversight, and traceability.  Let’s hope the new administration takes this on, and soon. And until it does, best to grind your own peanuts!

Update January 19: Just ran across this article on how Salmonella gets into peanut butter in the first place.  The usual way: animal feces.  Roasting the peanuts should kill Salmonella, so the contamination must have occurred later.  Did the factory have a HACCP plan in place?  If so, they must not have been paying much attention to it.

Update January 20: Add Cliff and Luna bars to the list.