Category Archives: Front-of-Package Litigation

Update: General Mills Settles Fruit Roll-Ups Lawsuit with CSPI

Posted on January 6, 2013 | Leave a comment

I’ve written several posts regarding the class action lawsuit targeting General Mills’ marketing of its Fruit Roll-Ups — see here and here.

The named plaintiff was substantially represented by the Center for Science in the Public Interest (“CSPI”) CSPI complained that General Mills’ Strawberry Fruit Roll-Ups featured pictures of strawberries on the front packaging but that the product does not contain strawberries.  Rather, they are are made from pears from concentrate, corn syrup, dried corn syrup, sugar, partially hydrogenated cottonseed oil, citric acid, acetylated monoglycerides, fruit pectin, dextrose, malic acid, Vitamin C (ascorbic acid), unspecified “natural flavor,” and Red 40, Yellow 5, Yellow 6, and Blue 1.

Last May, the court granted, in part, General Mills’ Motion to Dismiss that lawsuit and dismissed with prejudice plaintiff’s claims to the extent they are based on statements that Fruit Snacks are “fruit flavored,” “naturally flavored,” and “gluten free.”  The Court let the lawsuit proceed, however, with regard to the statement “Made with Real Fruit.”

In late December 2012, General Mills and CSPI resolved the lawsuit.  According to CSPI, General Mills agreed that, so long as strawberry Fruit Roll-Ups contain no actual strawberries, it would refrain from depicting strawberries on the label.  Further, so long as that product’s label contains the “made with real fruit claim,” it will include the percentage of fruit in the product.

For its part, General Mills said “we disagree with CSPI on the merit and substance of the case, but we both agreed to resolve the matter to avoid further litigation.”

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Posted in Front-of-Package Claims, Front-of-Package Litigation, Labeling

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Court Dismisses Suit Questioning Identity of Yoplait Greek Yogurt on Primary Jurisdiction Grounds

Posted on December 14, 2012 | Leave a comment

Yoplait_Greek

On December 10th, Judge Susan Richard Nelson of the U.S. District Court in Minnesota dismissed a putative class action regarding the alleged mislabeling of “Yoplait Greek” products marketed by Defendants General Mills and Yoplait.   The ruling was based on the doctrine of primary jurisdiction which is distinct from preemption and amounts to the  proposition that an issue within the substantive jurisdiction of an administrative agency should first be heard by that agency even if the alleged facts may give rise to a claim in court.

In this case, Plaintiff alleged that “Yoplait Greek yogurt is neither yogurt nor Greek, as those terms are used in the industry and as defined by regulation … because it contains significant amounts of Milk Protein Concentrate (‘MPC’).”   According to the Plaintiff, because MPC is not an ingredient expressly listed or described within the applicable standards of identity for yogurt, use of that ingredient is not permitted in yogurt.   Consequently, Plaintiff alleged that Defendants’ actions in marketing this product as “yogurt” violated several of Minnesota’s consumer protection statutes.

Although various grounds were asserted by Defendants for dismissal, the court found application of this doctrine persuasive, especially in light of a 2009 Proposed Rule issued by the FDA that would allow for certain modifications to the standards of identity for yogurt, including “the use of reconstituted milk and whey protein concentrate as standard dairy ingredients.”

[T]he Court finds that the reasons for applying the primary jurisdiction doctrine are present in this case.  The underlying issue here is whether MPC is a proper, permitted ingredient in yogurt.  The resolution of this question falls squarely within the competence and expertise of the FDA, pursuant to the authority granted to the Agency by Congress.

…. The FDA is in the best position to resolve any ambiguity about the standard of identity for yogurt – a matter requiring scientific and nutritional expertise.  Moreover, given that the FDA has issued its 2009 Proposed Rule on the standard of identity for yogurt, it would be imprudent for the Court, at this juncture, to substitute its judgment for that of the Agency’s while revision of the standard of identity is pending.

Moreover, the FDA’s ultimate decision on the permitted ingredients in yogurt will ensure national uniformity in labeling, utilizing the Agency’s special expertise in this regard.  The Agency’s unique role in ensuring such consistency and uniformity is particularly significant here, as several recently-filed yogurt lawsuits throughout the country involve the same or similar issues as found in the instant suit.   The increasing volume of this litigation creates the potential for inconsistent judicial rulings. This underscores the importance of promoting uniformity by referral of this matter to the FDA.

In other words, the Court found that the increasing flood of class action lawsuits on issues within the substantive jurisdiction of the FDA provided solid grounds for deferring such litigation.  Notably, the Court made this ruling knowing that the FDA’s prior pronouncements on this issue “do not constitute a model of clarity.”  Class action defendants should view this ruling very favorably given its potential applicability to other matters such as “all natural” and GMO claims.  Please see the complete ruling here.

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“GMO Inside” Campaign Launched As Flow of “Natural” Class Action Lawsuits Continues

Posted on November 14, 2012 | Leave a comment

Voters may have defeated Prop 37, which would have required the labeling of foods with GMO ingredients, but the issue of GMO ingredients is definitely not going away.  Two days after the election, supporters of Prop 37 launched GMO Inside, a coalition dedicated to help consumers identify GMO ingredients in their foods.  Members of GMO Inside’s steering committee include Food Democracy Now!, Green America, Institute for Responsible Technology, Foodbabe, Nature’s Path and Nutiva.  The press release announcing the coalition included the following statement:

“Corporations may have misled voters in California about GMOs, but they can’t change the fact that over 90 percent of Americans support the labeling of foods with genetically engineered ingredients,” said Alisa Gravitz, CEO of Green America.  “The GMO Inside campaign will make it possible for all Americans to find GMOs in the food products in their homes and communities, label them, and switch to non-GMO foods instead.  The campaign will show corporations that people will not complacently serve as lab rats for the testing of genetically engineered foods.”

Food companies were also reminded last week that litigation is a key tool of anti-GMO advocates by the filing of yet another class action complaint alleging that a product touted as “natural” is deceptively labeled because it is made with GMO ingredients.  This time, Pepperidge Farm, Inc. (owned by Campbell Soup, Co.) is the target of a putative class action suit filed in federal court in Colorado alleging that Pepperidge Farm “has mistakenly or misleadingly represented that its Cheddar Goldfish crackers … are ‘Natural,’ when in fact, they are not, because they contain Genetically Modified Organisms … in the form of soy and/or soy derivatives.”   See the entire complaint here.

As the above image shows, however, the product is not described as “All Natural” or “100% Natural” and its “Natural” claim is somewhat qualified by the “No Artificial Preservatives” statement.  A key issue will thus be whether a reasonable consumer perceives this language as a qualification or instead views “Natural” in this context as synonymous with “100% Natural.”

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Posted in Front-of-Package Litigation, Genetically Modified Organisms, Natural Claims

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Plaintiffs Join Forces in Class Action Suit Against Chobani for “Evaporated Cane Juice” and “All Natural Ingredients” Claim

Posted on October 14, 2012 | Leave a comment

FoodNavigator-USA reported that two plaintiffs dismissed their class action lawsuits against Greek yogurt manufacture Chobani, Inc. in order to combine forces as part of a third lawsuit pending in the Northern District of California.  At that venue, the combined Plaintiffs filed a Second Amended Complaint on October 10, 2012 targeting Chobani’s allegedly improper use of the term  (1) “evaporated cane juice” to describe sugar in the ingredient list and (2) “natural” to describe a product that uses natural color additives.

Specifically, Plaintiffs broadly allege that Chobani responded to consumers’ desire for natural and nutritious foods by “actively promoting the naturalness and health benefits of its products.”   On this point, Plaintiffs cite virtually every statement made by Chobani on its labels, advertising and website relating to the “purported naturalness, nutritional, and health qualities of its yogurt products.”  Plaintiffs then allege that such claims are false and deceptive, and the yogurt products misbranded, for two reasons.

First, Plaintiffs allege that Chobani lists “Evaporated Cane Juice” as an ingredient “despite the fact that the FDA has specifically warned companies not to use this term” and, further, that this (1) “the ingredient in question is not a ‘juice,’” and (2) “evaporated cane juice” is not listed in the FDA’s Standard of Identity for yogurt (21 CFR § 131.200) as an allowed nutritive carbohydrate sweetener.  This alleged “deception” is “material,” Plaintiffs allege, because approximately one-third of the product’s calories comes from this ingredient, i.e., “processed sugar with no nutritional benefit.”   It is unclear, however, whether all of those calories come from the “evaporated cane juice” or if some is naturally occurring lactose (i.e., “milk sugar”).

Second, Plaintiffs contend that “[s]ome of Chobani’s Greek Yogurt flavors are unlawfully labeled as ‘all natural’ and/or ‘only natural’ [because they are] artificially colored and/or containing unnatural ingredient including, by way of example, the pomegranate flavor which artificially colors the yogurt product with ‘fruit or vegetable juice concentrate.’”  In this regard, Plaintiffs note that color additives under 21 C.F.R. 70.3(f) are “artificial colors” and include “natural” ingredients “such as beet juice [when] deliberately used as a color, as in pink lemonade.”  Notably, however, Chobani does not appear to have made a blanket “all natural” claim but instead stated that its products contain “only natural ingredients” and contained “no artificial sweeteners” and “no preservatives.”  This qualification will likely be crucial as the case moves forward.

You can read the Second Amended Complaint here.

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Posted in Front-of-Package Litigation, Natural Claims

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Lawsuit Over Benecol “Cholesterol-Busting” Spread Dismissed

Posted on September 28, 2012 | Leave a comment

As reported by FoodNavigator-USA , a federal judge has dismissed a proposed class action lawsuit against Johnson & Johnson and McNeil Nutritionals over the labeling and marketing of the “cholesterol-busting” spread Bencol.   The lawsuit was filed last June and alleged that Benecol misled consumers because, at 0.85 g per serving, it contained insufficient plant stanol esters to merit the relevant health claims.   It was also alleged that the claim “proven to reduce cholesterol” rendered the product a drug and not a food.

Generally, the court found that plaintiffs claims were preempted because the FDA  issued a statement in 2003 allowing use of the claim in connection with products containing lesser amounts of phytosterols (at least 400mg per serving), and that “Federal agency action short of formal notice and comment rulemaking can preempt state law.”  Please see the full article here.

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Posted in False Advertising, Front-of-Package Litigation, Uncategorized

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Frito-Lay and the “Peppering” of Food Co.’s with Labeling Lawsuits

Posted on September 24, 2012 | Leave a comment

NBC News posted an article today titled “Lawyers Pepper Food Firms With Lawsuits Over Labeling.”  It’s a general overview of the flood of labeling lawsuits, with some notable quotes from consumer “watchdog” groups and plaintiff’s attorneys who are leading the attack against food companies for their labeling practices.

On a related note, another class action suit is challenging the “All Natural” labeling on Frito-Lay’s bean dip on the grounds that it contains genetically modified soy.  See Altman v. Frito-Lay North America, Inc., No. 12-cv-61803 (S.D. Fla.).  The Altman suit follows on the heels of Foust v. Frito-Lay, No. 1:12-cv-21975 (S.D. Fla.) and Berkowitz v. Frito-Lay, No. 1:12-cv-22436 (S.D. Fla.) which target Frito-Lay’s bean dip and “all natural” chips because of GMOs.  The “nearly identical” Foust and Berkowitz suits were found to be related actions and are now pending before the same judge.  And on September 21, 2012, Frito-Lay moved to transfer the Altman suit to the same judge for the exact same reasons.

Frito-Lay wants to include the new lawsuit in a pending motion to transfer the Foust and Berkowitz suits to the Eastern District of New York because of “substantial overlap” between the Florida cases and three earlier-filed and consolidated lawsuits in New York.   See Frito-Lay North America, Inc. “All Natural” Litigation, No. 12-cv-408 (E.D.N.Y).   Frito-Lay asserts that all of these suits have copy-cat complaints relating to the use of GMO’s with “all natural” claims and that they include the same basic allegations and seek the same types of relief.

Notably, one of the New York cases was just transferred to that venue from the Northern District of California.  Plainly then, Frito-Lay wants to have the question of whether it’s deceptive or misleading to use GMO ingredients in a product labeled as ”all natural” answered in a New York courtroom.  This makes sense for a host of reasons while also decreasing defense costs.  Moreover, this tactic takes advantage of the principle that, when a plaintiff seeks to represent a nationwide class, her choice of forum receives less deference than in other circumstances.

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Posted in Front-of-Package Litigation, Genetically Modified Organisms, Uncategorized

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CSPI v. Welch Foods

Posted on August 22, 2012 | Leave a comment

The Center for Science in the Public Interest (“CSPI”) continues its attacks on allegedly misleading food labels continues.  On August 14, 2012, CSPI declared that it had “Whack[ed] Welch’s Over Deceptive Health Claims” in reference to a “demand letter” to Welch Foods which asserts that various heart-healthy claims  were “deceptive and misleading.”  Specifically, CSPI contends that:

  1. claims that Welch’s 100% Fruit Juice product line is heart-healthy and may promote overall health are “deceptive and misleading because [these]  products may instead decrease overall health by  contributing to insulin resistance and obesity, and may thus promote heart disease and diabetes”;
  2. the claim that Welch’s Fruit Snacks, Fruit Juice Cocktails, Spreads, and 100% Fruit Juice drinks “Reward Your Heart” and are heart-healthy products is “unlawful because it is a claim of heart disease prevention, it lacks substantiation, and it is deceptive”; and
  3. claims that Welch’s Fruit Snacks products are nutritious and healthful to consume are “deceptive and misleading because … Welch’s Fruit Snacks contain added sugars and artificial food dyes, lack significant amounts of real fruit, and contain no dietary fiber.”

CSPI argues that these “claims violate state consumer protection laws such as Massachusetts G.L. c. 93A, Texas Business & Professions Code § 17.41 et seq., District of Columbia Code § 28-3905 et seq., New Jersey Statutes Ann. 56:8-1 et seq., California Business & Professions Code §§ 17200 & 17500, and California Civil Code §§ 1770(a)(5) & 1770(a)(14).”   Accordingly, CSPI states that Welch Foods will face a lawsuit unless it stops making heart-health claims for the above-named products.

The same day, Welch Foods issued a response stating, in relevant part:

[That] the substantial body of research conducted over a 15-year period supports the cardiovascular benefits of 100% grape juice made with Concord grapes, including many placebo controlled, human studies.    In addition, a recent comprehensive review of the science published in Nutrition Today concluded that consuming grapes and grape juice can support cardiovascular health without adversely affecting weight in healthy adults.

Contrary to CSPI’s view on the role of 100% fruit juice, the United States … Department of Health and Human Services 2010 Dietary Guidelines for Americans… say that 100% juice is one way to add more fruit to the diet as a complement to whole fruit intake.

Furthermore, equating the nutritional value of 100% grape juice to soft drinks is not only misleading but potentially harmful to the public.  Calorie for calorie, 100% grape juice packs more nutrition than soft drinks and delivers essential vitamins, minerals, and beneficial plant nutrients – to help promote health.

Welch’s declined to provide further comment in light of the potential litigation but cited numerous studies that it said supported its claims.

Notably, CSPI’s first and second arguments recall the on-going POM Wonderful  dispute with the FTC in which POM argues, among other things, that it has a First Amendment right to communicate the results of ongoing studies and that its 100% juice products are undeniably healthy.

Here, CSPI criticizes the fact that Welch Foods “highlights the antioxidant content of its 100% Grape Juices and fruit blends” because the claimed benefits are not based on “competent and reliable scientific evidence that is sufficient in quality and quantity based on standards generally accepted in the relevant scientific fields, when considered in light of the entire body of relevant and reliable scientific evidence….”  CSPI further argues that any health benefits are offset by the negative effects of the juice’s sugar and calorie content.  Although I cannot comment on the scientific studies cited by both sides, I do question CSPI’s attacks on the communication of health-related information in the promotion of a 100% juice product.  Under the CSPI’s view, it appears that almost any such communication would be an implied health claim that must be supported by the most stringent scientific studies and that, regardless, any claim (whether implied or not) could not be made if there are potentially offsetting factors (e.g., sugars and calories).   If the CSPI’s goal is to improve nutrition and public health, then its approach to this complex issue is too draconian and 100% juice should not so easily be equated with soda.

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Posted in Front-of-Package Claims, Front-of-Package Litigation

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Lawyers From Suits Against Big Tobacco Target Food Makers

Posted on August 18, 2012 | Leave a comment

 

The New York Times has an excellent article on some of the lawyers who are filing suits against the food industry after having success with similar suits against big tobacco.  The following cuts to the heart of the matter and relates to many of the posts from this blog:

More than a dozen lawyers who took on the tobacco companies have filed 25 cases against industry players like ConAgra Foods, PepsiCo, Heinz, General Mills and Chobani that stock pantry shelves and refrigerators across America.   The suits, filed over the last four months, assert that food makers are misleading consumers and violating federal regulations by wrongly labeling products and ingredients.  While there has been a barrage of litigation against the industry in recent years, the tobacco lawyers are moving particularly aggressively.  ….

“It’s a crime — and that makes it a crime to sell it,” said Mr. Barrett, citing what he contends is the mislabeling of those products. “That means these products should be taken off the shelves.”

Please read the entire article here.

 

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My Article in Food Processing Magazine: “Nutella Lawsuit Highlights Marketing Risks”

Posted on August 2, 2012 | Leave a comment

Please see my article from the August issue of Food Processing magazine:  Nutella Lawsuit Highlights Marketing Risks.

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Class Action Suit Accuses Hebrew National of Fraudulently Mislabeling Meat As “Kosher”

Posted on June 26, 2012 | Leave a comment

As noted in a prior post, the top label claim for new food products in 2011 was “kosher.”   Given other recent trends, it was thus not surprising that a class action lawsuit has now been filed alleging that Hebrew National‘s hot dogs and other meats are misleadingly labeled because they do not comport with the brand’s claim to be kosher “as defined by the most stringent Jews who follow Orthodox Jewish law.”

The class action complaint was filed last month in Minnesota state court but was recently removed to the U.S. District Court for Minnesota by Defendant ConAgra Foods, Inc., which owns Hebrew National.  Plaintiffs’ claims include negligence, violation of the Nebraska Uniform Deceptive Trade Practices Act, violation of the Nebraska Consumer Protection Act, and an alternative claim for “Violation of State Consumer Protection Laws”  to the extent the court requires subclasses for plaintiffs from different states.   See full complaint here.

Lead plaintiff’s counsel is Minneapolis-based Zimmerman Reed which sought out plaintiffs through a website which asserted:

Hebrew National sells the most well known kosher hot dogs in America, producing 720 million hot dogs each year. Hebrew National claims that it adheres to the highest standards of quality, and its hot dogs are marked with the “Triangle K” – a mark Hebrew National says is a “symbol of integrity.” Unfortunately, our firm has received troubling reports that some slaughterhouse plants supplying Hebrew National with its beef may not be upholding the strict kosher standards Hebrew National promises. Workers are threatened with losing their job, or demotion, if they speak up and try to point out violations of the kosher food laws.

According to the Jewish Telegraph Agency, Triangle-K, which certifies Hebrew National’s meats as kosher, has called plaintiffs’ claims “outrageously false and defamatory.”

Just recently, Hebrew National website issued the following statement on its website:

In light of the recent lawsuit, we want to assure our fans that we stand behind our kosher status. Hebrew National products are kosher, and this lawsuit is without merit.  Hebrew National’s kosher status is certified by a well-recognized and authorized third-party.  There is close rabbinical supervision of the food preparation process and packaging equipment.  For more than 100 years, Hebrew National has followed strict dietary law, using only specific cuts of beef that meet the highest standards for quality, cleanliness, and safety with no by-products, artificial flavors, or artificial colors.

It will be interesting to see whether plaintiffs have any religious authorities who are willing to testify on their behalf.   The case is Wallace et al v. ConAgra Foods Inc, U.S. District Court, District of Minnesota, Case No. 12-01354.

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