Monthly Archives: April 2012

Ominous Trend in Latest Nutrient Content Claim Class Action Suit v. Bumble Bee Foods

To no one’s surprise, the filing of class action lawsuits against food companies continues at a rapid pace in California.  The latest suit, filed on April 12th, alleges that certain King Oscar products labeled as “Rich in Natural Omega-3” and “Excellent Source Omega-3” are misleading and fail to disclose “risk-inducing” nutrients.

First, the Complaint alleges that “[w]here a particular nutrient does not have an established daily value (DV) under FDA regulations, food producers may not state on their food labels that their food product is a ‘good source’ of the nutrient, or use a comparable phrase, such as ‘excellent source’ or ‘rich in.’  21 C.F.R.  § 101.54.”  It then alleges that Bumble Bee violated this regulation “by representing that its products are an ‘excellent source’ of omega 3 or ‘rich in’ omega 3 and by failing to specify whether its omega 3 nutrient content claims are referring to ALA, DHA or EPA omega 3 fatty acids.”

Second, the Complaint alleges that these same products were improperly labeled under 21 C.F.R. § 101.13 because they fail to include a disclosure statement that the products included more than 13.0 g of fat, 4.0 g of saturated fat, 60 milligrams (mg) of cholesterol, and/or 480 mg of sodium per serving.  This prong of Plaintiff’s complaint is included, no doubt, as a means of bolstering the contention that plaintiff and “similarly-situated persons” were somehow harmed by Bumble Bee’s labeling practices.

Significantly, the Complaint continues the ominous trend of citing FDA warning letters to bolster its claims.   This time, Plaintiff quotes extensively from an FDA Warning Letter to Natural Guidance LLC to help legitimize its claims and asserts that “[o]ther companies that sell similar Omega 3 nutrient content claims have been found to be in violation of the laws concerning such claims.”  That warning letter involved some relatively strident claims by a maker of nutritional supplements.  Notably, the Bumble Bee products have more in common with the walnuts sold by Diamond Food which also received of an FDA warning letter regarding Omega 3.  The Diamond Food warning letter was the target of legitimate criticism because it seemingly condemned the communication to consumers of properly qualified scientific research.  This is similar to the criticism that POM Wonderful has leveled against the FTC, i.e., it is improper to ban non-deceptive speech regarding properly supported, qualified health claims.

Putting aside the FDA’s and FTC’s respective views on this topic,  I think the Plaintiff here will a difficult time convincing anyone that they were actually mislead by the Bumble Bee labeling at the time of purchase.

Please see the entire Complaint here.

Recipe Ownership: Stolen Trade Secrets, Public Domain or Property of the Chef

The Chicago Tribune reports that a lawsuit filed by Fraiche bakery in Evanston, Illinois against a former chef over a binder containing key recipes was quickly settled.  Fraiche alleged that the recipes were property of the bakery and that the chef improperly took the binder when she left.  The chef, however, told the press that the recipes were not “secrets” and that she obtained them from the public domain (cook books, the Internet, etc.).  She added that she compiled the recipes on her own time and at her own expense and  that its very common for chefs to collect their own recipes.   The bakery owner’s husband, though, called this “a lie” and said his wife changed ingredients or their measurements.  See the entire report here.

This curious episode underscores that recipes are generally not protectable under intellectual property laws and that companies must safeguard such recipes as trade secrets in order to prevent their use by others.

UPDATE: Jury Awards $13.2 Million to Fresh Del Monte in Dispute Over “Fresh” Produce

The jury has returned a $13.2 Million verdict in favor of Fresh Del Monte in the dispute over “fresh” that was the subject of this post.   According to the Wall Street Journal:

Fresh Del Monte said a jury returned a unanimous verdict on Friday in its favor, finding that Fresh Del Monte has the exclusive right under the parties’ licensing agreement to use the Del Monte trademark on certain refrigerated preserved fruit products.

The jury also returned a unanimous verdict in Fresh Del Monte’s favor in five out of six false-advertising claims, finding that Del Monte Foods‘ sale and marketing of refrigerated preserved fruit products misled consumers into believing the products were fresh fruit and that Del Monte Foods willfully violated the Lanham Act, which involves trademark uses.

The jury awarded separate damages to Fresh Del Monte totaling $13.2 million for both claims.

See full article here and additional coverage here.

Does Better Nutritional Labeling Impact Obesity Levels? Maybe Not, says Study Published in British Food Journal

New research published in the British Food Journal casts doubt on the benefits of nutritional labeling.  The purpose of such labeling is, of course, to encourage healthy eating habits and decrease obesity.   As reported in FoodNavigator-USA, however, the study notes that American consumers know significantly more about the fat content of foods they buy than consumers in France.  Nevertheless, levels of obesity are three times higher in the USA than in France.  The researchers call into question the focus on the levels of various nutritional components in food and note that consumers might “lose sight of the whole picture” with a better approach being to look at “what constitutes a healthy, complete and balanced meal.”   See Food-Navigator’s full report here.  Given the variety of other factors and cultural differences that can impact obesity, it will be interesting to see additional research on this topic and whether the Facts-up-Front campaign will have any impact on the obesity epidemic.

Cut and Prepared Fruits in Plastic Containers that need Refrigeration – a Battle Over the Word “Fresh.

The New York Times today features a fascinating overview of an ongoing dispute on the meaning of “fresh.”

The dispute sets Fresh Del Monte against Del Monte Foods. The two companies were created out of what had been a single Del Monte after the takeover of its corporate owner, RJR Nabisco, in 1989.

Under the terms of two licensing agreements between the two companies, Fresh Del Monte has the right to sell “fresh fruit, fresh vegetables and fresh produce” under the Del Monte name, while Del Monte Foods has the right to sell canned and preserved fruits, vegetables and produce.

Presently, the companies are disputing whether Del Monte Foods ran afoul of this language by selling cut and prepared fruit products sold in plastic containers that are found on refrigerated shelves in the produce sections of grocery stores.  This is certainly a case where each side’s argument has some merit.  See the complete article here.

Part 2 of My Front-of-Package Labeling Overview for About.com

Please check out the final part of my Front-of-Package Labeling Overview for About.com, which focuses on FOP labeling systems.  On this subject, I conclude:

As for the FDA, given its limited resources and preference for industry-led (ground-up) efforts, it is unlikely to take any formal action until it has exhaustively reviewed results of the Facts-Up-Front campaign (and, in all likelihood, Wal-Mart’s program) over the next 12-18 months.

The remainder of 2012 will provide tantalizing clues for the future of food labeling.  Will Wal-Mart’s “Great for You” seal influence purchasing decisions or motivate food companies to change product formulations?  Is the “Facts up Front” campaign sufficiently robust to help consumers make healthier choices?  No matter what happens, though, the use of FOP claims will not likely diminish and will continue to be a subject of much discussion and criticism.  Stay tuned.

My Front-of-Package Labeling Overview for About.Com – Part 1

I recently partnered with the inspiring Domenick Celentano who operates  the Food & Beverage guide at About.Com (aka the foodpreneur blog)  to put together an overview of Front-of-Package labeling issues.  Part 1 of 2 has now been posted so please check it out here.