Monthly Archives: December 2012

What’s on Food Regulatory Radar for 2013?

As 2012 winds down, I wanted to direct my readers to an excellent, 2-part series on titled “What’s on the Regulatory Radar in 2013.”

Part 1 – “from sugar reform to advertising to kids” is here.

Part 2 – “from yogurt standards to energy drinks” is here.

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


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.

Agave Loco Sues Sazerac Over RUMCHATA and CHATA Trademarks


 Agave Loco has filed a complaint against Sazerac Company, Inc. for trademark infringement in the Northern District of Illinois.  Agave Loco complains that Sazerac’s use of ORCHATA in connection with a cream-based beverage made with rum is confusingly similar to its federally-registered trademarks RUMCHATA and CHATA in connection with cream-based horchata-flavored alcoholic beverages made with rum.  Plaintiff alleges that Sazerac adopted  the ORCHATA mark “with the intent to pass Defendants’ product off as Plaintiff’s product sold under [plaintiff’s marks] to consumers ordering Plaintiff’s product in bars, cocktail lounges and other establishments.”

Notably, Agave Loco admits that the flavoring for its beverages “was inspired by a beverage originally of Spanish origin called ‘horchata.'”  It will be interesting to see whether Sazerac is able to use that admission to argue that all of the “chata” marks relate to a type of drink and that “chata” does not serve to identify a single producer but rather a type of rum drink.



Never Too Small To Brand

There’s a nice article on FoodManfacturing.Com by Perry Sainati titled “Never Too Small To Brand.”    The key point is that a majority of companies in the food and beverage industry deal in components and sell to other businesses.  Too many of these B-to-B enterprises, however, don’t place enough value on branding their products and the resulting “trust” that such efforts create.  Please check it out here.