Monthly Archives: November 2012

Dunkin’ Donuts and the “Best Coffee in America” Trademark

Dunkin’ Donuts application to register the mark BEST COFFEE IN AMERICA has been initially rejected by the USPTO because it “is merely laudatory and descriptive of the alleged merit of applicant’s services and the goods featured therein.”  Moreover, Dunkin’ Donuts’ “slogan is nothing more than a claim of superiority and is so highly laudatory and descriptive of the quality of the coffee featured in applicant’s restaurants, cafes and snack bars that applicant’s claim of acquired distinctiveness, based on five years’ use of the mark in commerce, is insufficient and unpersuasive.”  On this point, the USPTO cited In re Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056 (Fed. Cir. 1999) which held that the mark THE BEST BEER IN AMERICA was “so highly laudatory and descriptive as applied to beer and ale that it is incapable of acquiring distinctiveness.”

Notably, the examining attorney’s comments relate to the fact that this mark had previously been rejected in 2005, at which time Dunkin’ Donuts amended its application and obtained registration for this mark on the Supplemental Registry in 2007.  Presumably, Dunkin’ Donuts sought to use the mark’s five years on the Supplemental Registry as a means to bolster the argument that this slogan had acquired distinctiveness through extensive use and association with Dunkin’ Donuts.  For the moment, the USPTO is not buying that argument.  That said, this was an initial rejection and it will be interesting to see what arguments Dunkin’ Donuts brings to bear in its efforts to overcome this hurdle.

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

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.”

7-Up to Stop Selling Products Touting Antioxidants

On November 8th, Dr Pepper Snapple Group said that its 7-Up soda products  touting antioxidants will be off the market by early 2013.   That decision was announced the same day that a class action complaint was filed in California alleging that these products mislead the public by “convey[ing] the message that [they are] healthful, natural, and antioxidant-rich beverages that derive[] their antioxidant content from real cherries or real berries.”  The complaint further alleges that:

Contrary to Defendant’s claims and representations, the Products do not contain any real cherries, real berries, or even extracts from those fruits. Nor do the Products derive their antioxidant content from real, antioxidant-rich cherries; real, antioxidant-rich raspberries, blackberries, and cranberries; or real, antioxidant-rich pomegranates. Unbeknownst to the average consumer, the Products contain only one antioxidant—vitamin E.

Further, as explained in detail below, the minimal amount of added vitamin E in the Products is insufficient to provide consumers with the health benefits that Defendant’s representations lead them to believe the Products are able to confer.

But  Dr Pepper Snapple Group said  its decision to pull the drinks from the marketplace was not related to the lawsuit.  It said the drinks were being taken off the market for consistency across its brands.

California Voters Reject Prop 37 on GMO Labeling

California voters rejected Prop 37, the ballot initiative that would mandate the labeling of foods with any genetically-modified ingredients.  According to the San Francisco Chronicle, the proposed labeling law is headed for a clear defeat with 94% of all precincts reporting.

“We said from the beginning that the more voters learned about Prop. 37, the  less they would like it,” said Kathy  Fairbanks, a spokeswoman for the opposition. “We didn’t think they would  like the lawsuits, more bureaucracy, higher costs, loopholes and exemptions.  It looks like they don’t.”

The California Right to Know campaign issued a press release today which stated, in part, as follows:

Yesterday, we showed that there is a food movement in the United States, and it is strong, vibrant and too powerful to stop. We always knew we were the underdogs, and the underdogs nearly took the day. Dirty money and dirty tactics may have won this skirmish, but they will not win the war.

Today, we are more than 4 million votes closer to knowing what’s in our food than when we started. This is a victory and a giant step forward. We are proud of our broad coalition of moms and dads, farmers, nurses, environmentalists, faith and labor leaders who did so much with so few resources to bring us to this point, and we will carry forward.

Please see the entire article from the San Francisco Chronicle here.

My Q&A with Silliker (Part 2 of 2)

Here is Part 2 of my Q&A with Silliker, which provides some great insights on current labeling issues and common mistakes by food companies.   You can find Part 1 of the Q&A here.  My thanks again to all the great people at Silliker.

Food Identity Blog:    For manufacturers of prepared foods, are there particular labeling-related issues (e.g.,  allergens, GMO ingredients, calorie counts) that present the biggest challenges in terms of preparedness and compliance over the next 1-2 years as compared to other issues?  Please explain.

Silliker:  Sodium, front-of-pack labeling, and ‘all natural’ claims are some of the greatest challenges facing manufacturers of prepared foods.   Efforts to reduce sodium in processed foods and implied claims associated with front-of-pack labeling schemes are challenging in terms of product development and reformulation.  Moreover, it seems the use of ‘all natural’ on product labels has become a common reason for labeling violations resulting in numerous FDA warning letters and consumer lawsuits.

Manufacturers have been advised to reduce sodium in processed foods, but finding salt alternatives acceptable to consumers has been a challenge.  Food companies, industry groups and individuals submitted more than 500 comments earlier this year in response to a federal initiative to reduce sodium in processed foods.  While the majority of food companies voiced opposition to mandatory reductions in sodium, several comments expressed concerns about the cost of salt replacement technologies and described formulation problems associated with salt alternatives in processed foods.

As the FDA developed draft regulations for front-of-pack food labeling, the food industry advanced a voluntary labeling scheme for manufacturers. The Grocery Manufacturers Association (GMA) issued revised guidelines for its ‘Facts Up Front’ nutrient-based labeling system.  The Facts Up Front icon is expected to proliferate on food packaging throughout North America.  The labeling icon was developed to highlight significant information from the Nutrition Facts panel, including calories, saturated fat, sodium and sugar per serving.

The use of ‘all natural’ claims on food products has prompted complaints to the FDA from consumer advocacy groups as well as numerous legal challenges filed on behalf of consumers.

The use of ‘all natural’ or ‘100% natural’ claims in food labeling is a common problem for manufacturers due to the lack of an adequate regulatory definition for the term ‘natural’ for food.

Food Identity Blog:   What are the most frequent mistakes you see from small to mid-sized food manufacturers with regard to labeling and regulatory compliance?

Silliker:  Common food labeling errors in North America include the improper formatting of the Nutrition Facts panel in terms of nutrient rounding rules and graphics, undeclared ingredients or improperly identified ingredients, and nutrient content claims failing to meet FDA criteria.

Labeling errors associated with the nutrition facts panel might increase in the future as the FDA is planning to modify certain reporting requirements.   The FDA is expected to revise the Nutrition Facts panel to emphasize calories and more accurate serving sizes, but to diminish the use of  daily percent values for fat, sodium, and carbohydrates.  Moreover, the FDA is considering the declaration of ‘added sugars’ on the Nutrition Facts label.  The 2010 Dietary Guidelines and other public health endeavors in recent years have advised consumers to limit the dietary consumption of ‘added sugars’.  The proposed changes would support ongoing federal efforts to curb obesity.

Food Identity Blog:  Any final words of advice for food companies seeking to protect their brand’s value?

Silliker:  Food companies are confronted by emerging scientific challenges and an increasingly complex regulatory maize in the U.S. and abroad.  As the FDA moves forward with new food safety regulations and increased enforcement of labeling violations, food companies must be prepared.   For years, the expertise of independent laboratories and consultants has been relied upon to guide the industry through this labyrinth.  Whether nutritional labeling or label claims, if a food company has strong, documented data supporting their position, their risk of regulatory issues is greatly reduced.  If this data is produced and verified by an objective external testing laboratory, the risk is further reduced.

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Silliker recently opened a new 71,000 square-foot, state-of-the-art facility providing expert chemical and microbiological testing services for companies throughout the food supply chain.  Located in Crete, IL, the Silliker Solution Center leverages the latest technologies and harnesses innovative solutions to address both routine and challenging food industry needs.