Monthly Archives: October 2012

My Q&A with Silliker (Part 1 of 2)

It’s a privilege to present my Q&A with Silliker, a leading, worldwide provider of food quality, safety and nutritional consulting services.  Silliker is one of three subsidiaries of the Mérieux NutriSciences Corporation, along with Biofortis and Bioagri.  I was fortunate to tour Silliker’s new Solutions Center in Crete, Illinois at its grand opening this September.  It’s an amazing, 71,000 square-foot facility, and the largest laboratory in Silliker’s global network.   Special thanks to Patrick Kennedy of Silliker who helped facilitate this feature.  I’ll post Part 2 later in the week.

Food Identity Blog:  There has been a lot of publicity over California’s ballot proposal that would mandate labeling of food products that contain any GMO ingredients.  In this regard, the proposed law would exempt from the labeling requirements:

Food that an independent organization has determined has not been knowingly and intentionally produced from or commingled with genetically engineered seed or genetically engineered food, provided that such determination has been made pursuant to a sampling and testing procedure approved in regulations adopted by the [California Department of Food and Agriculture] ….

What issues and challenges exist for food companies that want to make the determinations set forth in this provision?   What challenges do you see for food companies with regard to testing and their internal processes if it wants to sell non-GMO food in light of the proposed law’s zero tolerance for co-mingling?

Silliker:  It has been estimated that up to 70 percent of food products sold in grocery stores might contain ingredients derived from genetically modified organisms (GMOs).  If Proposition 37, the Genetically Engineered Foods Right to Know Act, becomes law, it could have profound implications for the food industry related to labeling, marketing and new product formulation.

For years, the Food and Drug Administration and several highly-regarded public health institutions have maintained that products containing GMOs or genetically modified ingredients, are equivalent in terms of safety to the conventional counterparts.   In effect, Proposition 37 would not improve the safety of foods marketed in California, but consumers might perceive the mandatory labeling statement as a type of warning label.

Testing for genetically engineered ingredients and auditing manufacturing facilities are potential options for companies seeking to avoid a mandatory labeling statement.   Since GMO ingredients are not recognized as a food safety risk, mandatory pre-market testing of foods for GMOs seems unlikely to occur.  Currently, no federal regulations exist in the U.S. to mandate thresholds or testing requirements for genetically engineered material in food.

To control the comingling of GMO derived ingredients with food labeled as GMO-free, independent third-party auditors could inspect manufacturing facilities as is currently done in the case of allergens.   Food processors control allergens through programs that monitor production scheduling, sanitation effectiveness, control of rework, storage of allergenic ingredients and inspection of incoming ingredients.  An audit of an allergen control program can be conducted [by companies like Silliker] as a stand-alone audit or as an addendum to a more comprehensive audit of GMPs.   Testing for the presence of allergens in food products is typically conducted to validate and verify in-plant processes.

Food Identity Blog:  What changes have you seen over the past few years in the restaurant industry in light of the increased focus on restaurant menu labeling and the new federal regulations that will likely be finalized in 2013?  What are the biggest concerns you’re hearing from restaurants?

Silliker:  While some restaurant chains have been very proactive in preparing for the upcoming menu labeling requirements, other companies appear to have lagged behind due to the delayed publication of the final rules.

Earlier this year, the U.S. Supreme Court decision upheld the controversial health care law (Patient Protection and Affordable Care Act), which ensured the FDA would move forward with nutrition labeling regulations for “restaurants or similar retail food establishments” as mandated by the law.  To advance the regulations, the FDA must first resolve a few issues, including an industry challenge related to the scope of the rules.

The FDA issued proposed regulations for the disclosure of calorie information on restaurant menus (FDA-2011-F-0172) and vending machines (FDA-2011-F-0171) in April 2011.  Under the proposed regulations, “restaurants or similar retail food establishments” with 20 or more locations must post calorie information for standard menu items on printed menus, menu boards, and drive-through menus.   Upon request, restaurants must provide written nutrition information including: total calories, calories from fat, total fat, saturated fat, cholesterol, trans fat, sodium, total carbohydrates, sugars, dietary fiber, and protein.

Due to concerns about the scope of the regulations, the FDA proposed exemptions for certain establishments, including movie theaters and hotels, which only sell food in support of their primary business.  However, retail food trade associations and several members of the U.S. Congress urged the FDA to also provide exemptions for grocery stores.  Retailers have suggested the existing state and local laws for menu labeling do not apply to supermarkets.  The restaurant industry supports a consistent national approach to menu labeling.

Proactive restaurant companies have prepared for the upcoming regulations through database nutrient calculations and the analytical testing of menu items.  In general, the restaurants and other retail food establishments responding to the upcoming rules seem to be most concerned with efforts to reduce calories, fat and sodium in menu offerings.

Campbell Soup Co. Accuses “Chicken Soup for the Soul” of Infringement

Campbell Soup Company has filed suit against Chicken Soup for the Soul Publishing, LLC for “willful trademark and trade dress infringement, false designation of origin, trade dress dilution, deceptive acts and practices, and unfair competition.”   These claims are all based on the contention that the Defendant is using “trade dress strikingly similar to Campbell Soup’s iconic script typeface and distinctive label lay-out for use in connection with the sale of food products ….”  In particular, Campbell’s alleges that the defendant “directly copied the script ‘C’ and red coloring” from Campbell’s, along with the gold wave on the label.  Prior to filing suit, Campbell’s complained to the defendant who changed the above-depicted label by substituting an orange / brown color for the red element of the design and made modest changes to the gold line and fonts for  the letters C and S in the Chicken Soup for the Soul name.   Those changes did not satisfy Campbell’s which filed suit on October 17, 2012.

Campbell’s claims will undoubtedly be helped by its numerous trademark registrations relating to its “iconic script typeface” in connection with soup, an example of which is shown below.

The case is pending in the U.S. District Court for New Jersey as See the full Complaint here.

Nestlé Sued For Allegedly Misrepresenting “Spring” Water Sold in 5-Gallon Jugs

Nestlé is being sued for allegedly misrepresenting municipally-sourced water as naturally, spring-sourced in 5-gallon jugs of Ice Mountain Water used for office dispensers.  The complaint notes that bottled water often comes from municipal sources (i.e. taps) and alleges that bottled water from special sources such as a spring commands a premium and stands out in a crowded marketplace.  Plaintiff — the Chicago Faucet Shoppe — purchased the 5-gallon jugs beginning in 2008 and alleges that during the entire time it believed it was purchasing spring-sourced water based on invoices stating “Ice Mountain® Natural Spring Water,” delivery trucks that included the “Ice Mountain Natural Spring Water” logo, and the overall marketing of the products, which stress natural spring sources for the water products.

As the above image illustrates, many ICE MOUNTAIN water products include the text “100% Natural Spring Water” the 5-gallon jug is offered in “Spring,” “Drinking” and “Distilled” varieties, the later two of which may come from “well or municipal supply” according to this document.  Allegedly, though, this information does not appear on the 5-gallon jugs or the Ice Mountain Water website.

Initially filed in Illinois state court as a class action lawsuit on behalf of consumers in Illinois, Michigan, Minnesota, and Missouri, the case was removed to federal by Nestlé and is now pending in the Northern District of Illinois as The Chicago Faucet Shoppe, Inc. v. Nestlé Waters North America, Inc., Case No. 12-cv-08199.  See full complaint here.

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

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.

FTC Revises “Green Guides” For Environmental Claims

The Federal Trade Commission has issued revised “Green Guides” designed to help marketers ensure that claims regarding the environmental attributes of their products are truthful and non-deceptive.  The revisions include updates to the existing Guides, as well as new sections on the use of carbon offsets, “green” certifications and seals, and renewable energy and renewable materials claims.

“The introduction of environmentally friendly products into the marketplace is a win for consumers who want to purchase greener products and producers who want to sell them,” said FTC Chairman Jon Leibowitz.  “But this win-win can only occur if marketers’ claims are truthful and substantiated.  The FTC’s changes to the Green Guides will level the playing field for honest business people and it is one reason why we had such broad support.”

The FTC first issued its Green Guides in 1992 to help marketers avoid making misleading environmental claims, with subsequent revisions in 1996 and 1998.  The guidance they provide includes:

  • general principles that apply to all environmental marketing claims;
  • how consumers are likely to interpret particular claims, and how marketers can substantiate these claims; and
  • how marketers can qualify their claims to avoid deceiving consumers.

Significantly, either because the FTC lacks a sufficient basis to provide meaningful guidance or wants to avoid proposing guidance that duplicates or contradicts rules or guidance of other agencies, the Guides do not address use of the terms “sustainable,” “natural,” and “organic.”  

Revisions.  Among other modifications, the Guides caution marketers not to make broad, unqualified claims that a product is “environmentally friendly” or “eco-friendly” because the FTC states that perception study show that such claims are likely to suggest that the product has specific and far-reaching environmental benefits.  Additional revisions include:

  • advising marketers not to make an unqualified degradable claim for a solid waste product unless they can prove that the entire product or package will completely break down and return to nature within one year after customary disposal;
  • cautioning that items destined for landfills, incinerators, or recycling facilities will not degrade within a year, so marketers should not make unqualified degradable claims for these items; and
  • clarifying guidance on compostable, ozone, recyclable, recycled content, and source reduction claims.

New Sections.  The Guides contain new sections on: 1) certifications and seals of approval; 2) carbon offsets, 3) free-of claims, 4) non-toxic claims, 5) made with renewable energy claims, and 6) made with renewable materials claims.

The new section on certifications and seals of approval, for example, emphasizes that certifications and seals may be considered endorsements covered by the FTC’s Endorsement Guides, and includes examples that illustrate how marketers could disclose a “material connection” that might affect the weight or credibility of an endorsement.  In addition, the Guides caution marketers not to use environmental certifications or seals that don’t clearly convey the basis for the certification, because such seals or certifications are likely to convey general environmental benefits.

LA Times: “No on Proposition 37”

The Los Angeles Times is urging California voters to say “no” to Proposition 37, which would mandate the labeling of foods with genetically modified  ingredients.

In most cases, there is no requirement to inform consumers, via labels, about the use of pesticides,  hormones or antibiotics, or about the inhumane conditions in which animals are often kept. But Proposition 37 would make an exception for genetically engineered food, requiring that it be labeled before being sold in California. Although we generally endorse people’s right to know what goes into their food, this initiative is problematic on a number of levels and should be rejected.

One of the problems identified in the Editorial include an issue I raised in earlier posts — that the initiative “is sloppily written” and “contains language that … could be construed by the courts to imply that processed foods could
not be labeled as ‘natural’ even if they weren’t genetically engineered.”

Other problems the LA Times identifies with the proposal include:

  • “Most of the burden for ensuring that foods are properly labeled would fall not on producers but on retailers”;
  • “Enforcement would largely occur through lawsuits brought by members of the public …, a messy and potentially expensive way to bring about compliance”;
  • “there is little if any evidence that changing a plant’s or animal’s genes
    through bioengineering, rather than through selective breeding, is dangerous to the people who consume it”; and
  • “the marketplace already provides ways to inform consumers about their food” and “food producers are welcome to label their foods as GE-free” and “Organic foods are never genetically engineered.”

Please read the complete Editorial here.

My Article at FoodProcessing.Com: Proposition 37: Food Transparency or Increased Organic Food Sales?

Please see my “Power Lunch” article at FoodProcessing.com on the GMO-labeling ballot initiative in California titled Proposition 37: Food Transparency or Increased Organic Food Sales?