Welch’s Fruit Snacks Violate “Jelly Bean Rule” Alleges New Class Action Lawsuit

A class action lawsuit has been filed against Welch Foods, Inc. alleging that it is misrepresenting the fruit content and the nutritional and health qualities of its fruit snacks.  The case was filed on September 18, 2015 and is pending as case no. 1:15-cv-05405 in the U.S. District Court for the Eastern District of New York.

Specifically, plaintiffs allege that Welch deceived consumers by suggesting that Welch’s Fruit Snacks contain significant amounts of the fruits depicted in the marketing and on the labeling of the products, are nutritious and healthful to consume, and are more healthful than similar products.  In this regard, plaintiffs highlight that the product labels include the claim that the Fruit Snacks are “Made With REAL Fruit” and include images “of the characterizing fruit.”  Moreover, they allege that claims such as contains “100% Vitamin C,” “25% Vitamins A & E,” and “no preservatives” are representations that the Fruit Snacks are healthy.

But the products are not healthy, according to plaintiffs, because the products allegedly “contain only minimal amounts of the vibrantly depicted fruits, and are no more healthful than candy.”  Those depicted fruits, plaintiffs allege, “are not the predominant ingredient or even the most prominent fruit in the” Fruit Snacks which actually “contain significant amounts of sweeteners and added sugars, as well as artificial flavors and artificial colors.”

Notably, Plaintiff’s specifically alleged that the Fruit Snacks or misbranded under FDA regulations because Welch fails to display the true percentage of the fruits used in the product name on the front label in violation of 21 C.F.R. §102.5(b).  That provision requires a product to “include the percentage(s) of any characterizing ingredient(s) or component(s) when the proportion of such ingredient(s) or component(s) in the food has a material bearing on price or consumer acceptance or when the labeling or the appearance of the food may otherwise create an erroneous impression that such ingredient(s) or component(s) is present in an amount greater than is actually the case.”

In addition, Plaintiff’s assert that the Fruit Snacks violate the FDA’s Fortification Policy (known as the “jelly bean rule”) which provides that the FDA “does not encourage indiscriminate addition of nutrients to foods, nor does it consider it appropriate to fortify . . . sugars; or snack foods such as candies . . . .”  21 C.F.R. §104.20(a).   In this regard, Plaintiffs further allege that if Welch “had not … fortified the Fruit Snacks with vitamins A, C, and E, they could not claim that these sugary snacks were a nutritious, vitamin-rich food.”

In response to the Complaint’s allegations, Promotion in Motion, which makes the snacks under license for Welch Foods,  issued the following statement: “It is a fact that fruit, whether in the form of juices or more recently purees, has always been the first ingredient in Welch’s Fruit Snacks.  Our labeling is truthful and gives consumers the information they need to make informed decisions.  For nearly 15 years, we have been proud to bring consumers snacks made with the highest quality ingredients, that consistently meet and even exceed quality standards and FDA regulation.”

This case underscores the continuing risks associated with marketing products that include real fruit (including fruit juices) but also added sugar and other ingredients.  Food companies naturally want to include imagery highlighting the fruit flavors associated with a product and highlight that the products include real fruit.  And fortification can help make a product more healthy and attractive to consumers.  On the other hand, plaintiff’s attorneys are quick to attack such marketing as detailed above.  This case also has echoes of the  class action over Coca-Cola’s Vitaminwater which settled last year, where the central allegation was that the product’s name and labeling were misleading because many of the flavors contained negligible amounts of fruit juice and were predominantly made up of water and sugar.

Chipotle Hit with Class Action on use of GMO Ingredients


After several years of primarily filing suit against packaged food companies, a recently-filed lawsuit is targeting Chipotle Mexican Grill, Inc. for allegedly falsely labeling its menu as GMO free.  In the Complaint, plaintiff sets forth how Chipotle launched a “Food with Integrity” program as part of its “carefully tailored … public image” to market to “healthy-lifestyle and environmentally conscious consumers that it knows are willing to pay premium prices for its food products because they align with the consumers’ ethical eating choices.”  In April 2015, Plaintiff alleges, Chipotle “capitalized on this perception” by taking “the unprecedented step among fast-food restaurants [of] launching a multi-media publicity campaign touting that it was the ‘first national company’ in the food industry to serve a menu devoid of GMOs.”

Plaintiff claims that the foregoing marketing statements were false because:

Among other things, Chipotle serves meat products that come from animals which feed on GMOs, including corn and soy.  Chipotle’s tacos and burritos are also usually served with sour cream and cheese from dairy farms that feed animals with GMOs. And, Chipotle also sells Coca-Cola and other soft drinks that are made with corn-syrup—a GMO.  While Chipotle knows that its menu contains ingredients with GMOs, it takes no meaningful steps to clarify consumer misconceptions in its advertisements and on its billboards, both in stores and in print, which instead say “all” of the ingredients used in its Food Products are “non-GMO”.

Notably, plaintiff minimizes disclaimers on Chipotle’s website which state that “there is currently not a viable supply of responsibly raised meats and dairy from animals raised without GMO feed.”  Specifically, plaintiff asserts that “Chipotle only discloses this information on its website because it knows its fast-food customers never need to visit Chipotle’s website to buy food, and are highly unlikely to seek out this information” and that consumers are instead “likely to rely on Chipotle’s internet, mass media, and in-store advertising ….”

And, of course, plaintiff alleges that,”[h]ad they known of the true character and quality of the ingredients used in Chipotle’s Food Products, Plaintiff and the putative class members would not have purchased (or would have paid less for) such products.”

Putting aside whether this lawsuit has merit, it serves as an important reminder that restaurants and even grocery stores are potential targets for litigation and must carefully review their marketing and in-store signage for statements that might increase their risk of being sued.

My Comments on the Blue Diamond “Almond Milk” Class Action Suit.

Blue Diamond Growers has been targeted in a class action lawsuit alleging that its “almond milk” products mislead consumers because they only contain 2% almond milk.  I provided some thoughts on this case to FoodNavigator-USA, which can be found here.

Update: Settlement Reached in Lawsuit Over Templeton Rye Whiskey

I previously wrote about a complaint filed in Illinois state court on September 9, 2014, that alleged that Templeton Rye’s engaged in deceptive marketing by claiming that its namesake rye whiskey is “Made in Iowa” using small-scale production methods and is produced pursuant to “a prohibition-era whiskey recipe.”  Plaintiff alleged that, contrary to these representations, the whiskey is actually mass produced and aged in Indiana using a stock recipe” and “the only activity that occurs in Iowa is the emptying of the barrels and the filling of the bottles….”

The Des Moines Register is now reporting that a settlement was reached that “requires the company to change labeling on its bottles and the language on its website” and also “requires Templeton Rye to set aside a cash pool that could be used to refund customers who bought bottles of the whiskey.”

Templeton Rye’s website presently states that the product is “based on” a prohibition-era recipe and there is no reference to the product being “Made in Iowa.”  These changes will no doubt carry over to the product’s label which will likely state that the product is “Distilled in Indiana” and “Bottled” and/or “Produced in Iowa.”

Coca-Cola Denied Summary Judgment in Class Action Over Minute Maid Pomegranate Blueberry Juice Blend


On Monday, a California federal judge rejected Coca-Cola’s motion for summary judgment in a putative class action over the allegedly misleading marketing of its Minute Maid Enhanced Pomegranate Blueberry juice blend.  The court’s ruling was based, in part, on the Supreme Court’s 8-0 ruling last year in POM Wonderful v. Coca-Cola.   As that case highlighted, despite the name of the product and the label’s display of pomegranates and blueberries (along with raspberries), those fruits made up only 0.6% of the juice’s content.  Coca-Cola discontinued this product sometime over the past year.

The class action lawsuit was filed in 2009 but was stayed for approximately four years as POM Wonderful v. Coca-Cola made its way through the appeals process.  The key allegations from the lawsuit are the following:

By characterizing this product as “Pomegranate Blueberry” on the front and back label, including the prominent display of a pomegranate and blueberries on the front label, emphasizing the “antioxidants” which will help defend against “free radicals” on the back label, and creating an artificially darkened juice, Coca-Cola misled Plaintiff and other consumers, who reasonably expected that the juice product was an antioxidant-rich product consisting primarily of pomegranate and blueberry juices when they purchased the product.

Plaintiff’s state law claims are aimed at the features of the naming and labeling which are voluntary, and not required by the FDA regulations, which Coca-Cola selected in order to maximize the label’s deceptive impact upon Plaintiff and other members of the Class.

In its motion for summary judgment, Coca- Cola correctly pointed out that the express preemption provision of the Food Drug and Cosmetic Act’s (“FDCA”) was not at issue in POM Wonderful because that case involved Lanham Act claims under federal law.  That provision provides that “no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce . . . any requirement for the labeling of food of the type required by” various sections of the FDCA “that is not identical to the requirement of such section . . . .”  Coca-Cola asserted that the Plaintiff’s state law claims were preempted because the labeling rules Plaintiff argues should apply have not been adopted by the FDA and therefore any resulting violation of state law could not possibly constitute “identical” obligations to the FDCA.

The Court, however, rejected that argument in light of recent district court cases finding that the FDCA’s proscription of statements that are “false or misleading in any particular” is broad enough that it is effectively identical to similar proscriptions in state law.  In this regard, the Court stated:

Further, the Supreme Court’s later opinion in POM Wonderful, though addressing the issue of preclusion rather than preemption, explicitly rejected the “[assumption] that the FDCA and its regulations are at least in some  circumstances a ceiling on the regulation of food and beverage labeling.”

Accordingly, the Court denied Coca-Cola’s argument that the state law claims were expressly preempted by the FDCA.

Needless to say, this case, along with the recent precedent it cites, suggests a new path exists for class action plaintiffs to assert state law claims amenable to class action status while avoiding the express preemption provision of the FDCA.

Q&A with Food Business News on Clean Label Claims and other Hot Topics

It was my pleasure to participate in a Q&A with Food Business News on clean label claims and a other hot topics.   Please see here.

Trademark Battle over “Umami Burger” in Chicago

On June 17th, Umami Restaurant Group Inc. (“URG”) filed a trademark infringement lawsuit against Wsong, Inc., d/b/a as bopNgrill, a Korean inspired burger restaurant located in Chicago.  URG complains that BopNgrill is selling a “Umami Burger”menu item and that this creates a likelihood of consumer confusion between the two restaurants.

URG operates a chain of burger joints called Umami Burger, most of which are in California.   The first location in the Midwest opened in Chicago in 2014.  It owns several U.S. trademark registrations relating to UMAMI BURGER, the earliest of which was filed on August 4, 2011.

URG will likely face two hurdles in pursuing its lawsuit.  First, bopNgrill opened its first restaurant in 2009 and has been at its current location since 2011.  Although it is unclear when bopNgrill first sold an “umami burger,” if it was prior to the filing date of URG’s trademark application, then bopNgrill can argue that it has priority to the name “Umami Burger” in the Chicago area.  That is because trademark use is the key to establishing priority in a particular territory.  Although a federal trademark registration gives a trademark owner rights at the national level, those rights only start on the filing date of the application and prior use in a geographic area trumps a later-filed application where the registrant didn’t use the mark in that particular territory.

Second, umami is a descriptive term for a savory taste, which is considered one of the five basic tastes (along with sweet, bitter, sour and salty).  Accordingly, bopNgrill can argue that URG’s trademark rights are weak since trademark law limits the protections given descriptive trademarks.  After all, a burger joint has a right to describe its burgers as savory.  This argument has more force for bopNgrill as well because it’s using “umami” in connection with a menu item rather than the store itself.   Although bopNgrill is apparently not using “umami” in a strictly descriptive manner, it can assert that this case is analogous to someone trying to prevent others from selling “salty pretzels.”

This case underscores the risks of having a brand name tied to a descriptive mark which can increase the time and effort that must be expended to police the associated trademark rights.