Monthly Archives: June 2012

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

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.

Freakonomics: “How California’s GMO Labeling Law Could Limit Your Food Choices and Hurt the Poor”

There’s an excellent article posted today by Steve Sexton on the Freakonomics website titled “How California’s GMO Labeling Law Could Limit Your Food Choices and Hurt the Poor.”  Here’s a snippet:

More devastating than the label itself, could be the cost of avoiding the label on non-GE foods that may nevertheless contain trace amounts of GE material. In the U.S., the highest-grade corn can contain as much as 2% foreign material, like crop residues. In Europe, a food product can containas much as 0.9% genetically engineered material and avoid a GE label. But the California law would impose a nearly twice as stringent purity standard, tolerating only 0.5% GE content in non-GE food.

Such a high purity standard would likely require farmers to invest in separate planting, harvesting, storage, hauling, processing, and packaging equipment for GE production in order to avoid revenue losses and liability from contaminating their non-GE operations or those of competitors. Because the costs of risk reduction generally increase exponentially in the level of safety, California’s stringent purity standard may be a death sentence to GE producers who could spread the high fixed costs of contamination avoidance across only the low levels of production that the market would initially support.

Please read the entire piece in full here.

Report on Cereal Companies: Increase in Nutritional Quality Matched By Increase In Child-Directed Advertising Of Least Nutritious Products

Continuing with the theme of child-directed marketing, the Yale Rudd Center for Food Policy &  Obesity has just released its latest Cereal FACTS report.  The key finding is that “cereal companies have improved the nutritional quality of most cereals marketed directly to children, but they also have increased advertising to children for many of their least nutritious products.” 

The title of the report is “Limited progress in the nutrition quality and marketing of children’s cereals.”   Notably, the conclusion of the report states as follows:

The bottom line is that General Mills, Kellogg, and Post continue to aggressively target children with advertising for products such as Reese’s Puffs, Froot Loops, and Pebbles that rank at the bottom of their products in nutrition and at the top in added sugar.  The majority of cereal advertisements that children see on TV (53%) promote products consisting of one-third or more sugar.   One 30-gram serving of these cereals contains as much sugar as 30 grams of Chips Ahoy cookies (3 cookies).  Just 12% of the cereal TV ads viewed by children promote products with 26% or less sugar, compared with nearly one-half of ads seen by adults.  Although the 9 or 10 grams of sugar per serving in children’s cereals today is less than the 14 or 15 grams these products contained six years ago, they are still high-sugar products that children should not consume regularly. 

See the full report here.

Nestlé Accused of Breaking Pledge Not to Market Candy to Children

So what does it mean to “market” food products to children?  Some lines are clear but the gray areas are vast.  Case in point is the accusation by the Center for Science in the Public Interest (CSPI) that Nestle broke its pledge to not market candy to children by marketing Girl Scout-themed Crunch bars.  Nestle’s pledge was made through its membership in the industry-led Children’s Food and Beverage Advertising Initiative.

Personally, it’s difficult to see how the inclusion of the Girl Scout logo on a candy bar crosses the line from marketing to adults, to marketing to adults and children.  After all, if we’re talking about the supermarket check-out line, then my children are sufficiently attracted to the candy and the Girl Scout Logo would not unduly draw their attention.  On the other hand, if candy bars  included pictures of Transformers robots, then the line would clearly be crossed by this fact alone.   But, of course, the differences between these scenarios are relatively subtle and opinions on whether they “target children” are highly subjective.

Mintel Data Highlights Top Label Claims for Food Product’s Introduced in 2011

Mintel’s Global New Products Database has highlighted the top label claims for   new food and beverage products introduced in 2011.  The top claim was “kosher” which applied to 27% of new products, a figure that was more than twice that of the second most common claim, “all natural.”   The remainder of the top five were “no additives/preservatives,” “low/no/reduced allergen,” and “gluten-free.”    Notably, “no-High Fructose Corn Syrup (HFCS)” was near the bottom of the list and appeared on only 2% of product introductions.

“New product introductions in the US, across all categories, usually total more than 20,000 in most years,” says Lynn Dornblaser, director, innovation & insight at Mintel. “Those with ‘no-HFCS’ claims only accounted for about 400 new product intros in 2011, or 2%.  By comparison, they’re a very small part of the market.”

The new data corresponds with a Mintel consumer study from last year that showed HFCS to be a low priority when grocery shopping, with only 4% of consumers indicating they were looking to avoid HFCS, and only 3% indicating that they were reading labels for HFCS.

Source:  http://www.prnewswire.com/news-releases/new-mintel-data-highlights-most-frequent-new-product-on-package-claims-in-food–beverage-industry-158486945.html

German Court: Pepsi Does Not Infringe Trademark for Coca-Cola’s Contour Bottle

The Coca-Cola “contour” bottle is a classic example of trade dress.  Separate and apart from the name and logo on the label, its overall visual appearance serves to distinguish it from other sodas and identifies the source of the product to consumers, thus giving rise to trade dress rights in that visual appearance.  The boundaries of these rights, however, are not easily defined.

Case in point is a May 31st decision by the Hamburg Regional Court in Germany.   The court held that Coke’s classic “contour” bottle (below left) was not sufficiently similar to PepsiCo’s “Carolina” glass bottle (below right) and PepsiCo thus did not unfairly take advantage of the reputation of Coca-Cola’s trade dress, which was the subject of several EU trademark registrations.  

Central to the ruling was the finding that the contour (or “scalloped”)  form of the Coke bottle was not, standing alone, protectable because it is a general shape used by many manufacturers.  The court then found that the Coke bottle was distinctive because of the vertical grooves on the neck and lower body that are separated by a wide “belt” in the middle.  The Pepsi bottle had neither of these design elements and, in contrast, features wavy, horizontal lines on the lower half without any “belt.” 

The case is LG Hamburg, 315 O 310/11.

Branding Your Food Company As “Socially Responsible”

This week’s big news is Disney’s announcement that all products advertised on its children-focused television channels, radio stations and web sites must comply with nutritional guidelines designed to promote fruit and vegetable consumption, limit calories and reduce saturated fat, sodium, and sugar. On a related note, Disney ranked #3 in a global study of the world’s most reputable companies by the Reputation Institute, as measured by the emotional indicators of trust, esteem, admiration and good feeling. In a Forbes’ article on the study, Kasper Ulf Nielsen, Reputation Institute’s executive partner, states: “People’s willingness to buy, recommend, work for, and invest in a company is driven 60% by their perceptions of the company and only 40% by their perceptions of their products.” Accordingly, Disney’s announcement on the advertising of food products was not simply the result of pressure from First Lady Michelle Obama, but also made solid business sense.

The relationship between reputation management, brand power and sales has rarely been lost on major food companies who — like Disney — are increasingly focused on corporate responsibility with regard to a variety of social issues. Clearly, the ideal is to position your company as part of the solution rather than the problem.

A recent example is the Campbell Soup Company which is highlighting the Facts Up Front labeling system as part of its social responsibility program. But Campbell’s program goes beyond labeling changes and extends to an array of socially-relevant issues. According to Dave Stangis, Campbell’s Vice-President-Public Affairs and Corporate Responsibility:

As a food and beverage company, we strive to transparently address a unique range of topics, including sustainable agriculture, responsible sourcing, promotion of human health and sound nutrition, and responsiveness to consumers’ expectations of the foods they choose for themselves and their families.

Of course, addressing these topics has its limits when weighed against a company’s ultimate responsibility to its shareholders. A keen example is Frito-Lay’s decision in 2010 to cease using biodegradable packaging for its Sun Chips following consumer complaints that the bags were too noisy. That said, given the increased scrutiny of food companies, including consumer-driven campaigns empowered by social media, I fully expect many more companies to follow in the footsteps of Disney and Campbell’s and highlight their efforts to be “socially responsible.”