Monthly Archives: January 2013

McDonald’s Fish to be Labeled as “Certified Sustainable Seafood”


On January 24th, McDonald’s announced that it will be the first national restaurant chain to carry a label certifying sustainable fishing practices.  The blue “Fish Forever” ecolabel” from the Marine Stewardship Council (“MSC”) certifies that the Alaskan Pollock used in McDonald’s Filet-O-Fish sandwiches come from suppliers with sustainable fishing practices.

MSC certification indicates that over 14,000 McDonald’s restaurants across the US have met the MSC Chain of Custody standard for traceability, which is the ability to track the fish all the way back through the supply chain to the fishery.  Under the MSC certification program, these fisheries have been assessed by independent scientists against three core principles: the health of the fish stock, the impact of the fishery on the ecosystem and the management system that oversees the fishery.

McDonald’s, which uses MSC certified wild-caught Alaska Pollock for its Filet-O-Fish sandwich, will begin displaying the MSC ecolabel beginning in February 2013 – coinciding with the launch of Fish McBites.  In 2011, McDonald’s introduced the same MSC certification for all its European restaurants.

In 2000, Whole Foods Market was the first to carry the Marine Stewardship Council’s “Fish Forever” label.   This market trend is now reaching critical mass as consumer concerns with sustainable fish increases.   No doubt, 2013 will see  much more use of the MSC “Certified Sustainable Seafood” label in restaurants and grocery stores.

My Article in Food Processing Magazine – “What’s Next for GMO Labeling?”

Please see my article for Food Processing magazine – What’s Next for GMO Labeling? – The defeat of California Proposition 37 does little to slow down anti-GMO activists.”

As more fully explained in the article, trends for GMO labeling in 2013 will include:

  • Continued calls for federal and state-level labeling of GMOs;
  • Boycotts and on-line protests based on demands for food “transparency”;
  • Continuing lawsuits targeting “all-natural” food products that include GMOs; and
  • The growth of food products verified as non-GMO.

Please see the complete article here.

FTC Denies POM Wonderful Appeal

The FTC Commissioners have upheld an an administrative law judge’s finding that POM Wonderful made false claims about the health benefits of its products. See the entire 53-page opinion here.

The commissioners held that an array of POM Wonderful advertisements made deceptive claims that its juice was proven to treat heart disease, prostate cancer and erectile dysfunction.  In so doing, the FTC rejected POM Wonderful’s argument that the ALJ’s May 2012 ruling was flawed because the ads were not deceptive and were protected by the First Amendment.

Significantly, the Commission stated that health claims should be supported by two randomized, well-controlled, human clinical trials:

Competent and reliable scientific evidence shall consist of at least two randomized and controlled human clinical trials (RCTs) of the Covered Product that are randomized, well controlled, based on valid end points, and conducted by persons qualified by training and experience to conduct such studies.  Such studies shall also yield statistically significant results, and shall be double-blinded unless Respondents can demonstrate that blinding cannot be effectively implemented given the nature of the intervention.

This differed from the AJL’s ruling which stated that, while health claims should always be supported by “competent and reliable scientific evidence,” there is no requirement that substantiation must always require two randomized controlled trials (RCT).

In a concurring statement, hoewver, FTC Commissioner Maureen K. Ohlhausen, disagreed with the Commission’s findings that all ads were misleading.   Ohlhausen pointed to several ads for which she said there is no extrinsic evidence to show that consumers would reasonably interpret the claims as disease claims. “We must keep in mind … that if we are too quick to find stronger claims than the ones reasonable consumers actually perceive, then we will inadvertently, but categorically, require an undue level of substantiation for those claims.”

Expect to hear more on this one since POM Wonderful is sure to appeal this ruling to the U.S. Circuit Court of Appeals for the D.C. Circuit.

Nutrition Facts – 20 Years and “Evolving”

The FDA has posted an interesting article titled “Nutrition Facts Label: 20 and Evolving.”  The key point of the piece is self-congratulations with regard to the “revolutionary” nature of this requirement, which was finalized in a final rule on Jan. 6, 1993.   The article notes, however, that the Nutrition Facts panel is showing its age:

The agency is planning to update the Nutrition Facts label based on the latest science-based nutrition recommendations.

Paula Trumbo, Ph.D., acting director of FDA’s nutrition programs staff explains that updates are being assessed to address such factors as current nutrient recommendations, public health concerns based on recent data on food consumption, and the agency’s desire to make this information as clear and useful as possible.

The updates are still being formulated. Public input will be sought when they are proposed.

More specifically, expectations are that the FDA will propose rules early this year (followed by a period for public comment) revising serving sizes, daily values, and additional nutrient declarations (possible addition of “refined sugars”).  The big question is whether anything will be done with regard to label complexity and/or label design.   The Facts Up Front campaign has been successful in generating voluntary industry compliance which is the FDA’s preferred approach.  But that campaign likely doesn’t go far enough for many industry watchdogs.  No matter what rules are proposed, expect a great deal of controversy and discussion regarding what is, and is not, proposed.


Reviving Food Brands That Aren’t Quite Forgotten

There’s a nice article in my hometown newspaper, the Chicago Tribune, titled Reviving Brands That Aren’t Quite Forgotten.  The focus is on persons who acquire old brands in order to capitalize on the instant name-recognition and associated consumer trust, especially in the “value” market segment.  It is a nice reminder, especially in light of the Hostess bankruptcy, of the advantages a well-developed brand has over no-name, generic counterparts.   But, as the article notes, one can just sell nostalgia.

“You have to make the product relevant today,” said Ellia Kassoff, chief executive of candy maker Leaf Brands in Newport Beach. “I don’t want to sell to the dead.”

Please see the complete article here.

Update: General Mills Settles Fruit Roll-Ups Lawsuit with CSPI

I’ve written several posts regarding the class action lawsuit targeting General Mills’ marketing of its Fruit Roll-Ups — see here and here.

The named plaintiff was substantially represented by the Center for Science in the Public Interest (“CSPI”) CSPI complained that General Mills’ Strawberry Fruit Roll-Ups featured pictures of strawberries on the front packaging but that the product does not contain strawberries.  Rather, they are are made from pears from concentrate, corn syrup, dried corn syrup, sugar, partially hydrogenated cottonseed oil, citric acid, acetylated monoglycerides, fruit pectin, dextrose, malic acid, Vitamin C (ascorbic acid), unspecified “natural flavor,” and Red 40, Yellow 5, Yellow 6, and Blue 1.

Last May, the court granted, in part, General Mills’ Motion to Dismiss that lawsuit and dismissed with prejudice plaintiff’s claims to the extent they are based on statements that Fruit Snacks are “fruit flavored,” “naturally flavored,” and “gluten free.”  The Court let the lawsuit proceed, however, with regard to the statement “Made with Real Fruit.”

In late December 2012, General Mills and CSPI resolved the lawsuit.  According to CSPI, General Mills agreed that, so long as strawberry Fruit Roll-Ups contain no actual strawberries, it would refrain from depicting strawberries on the label.  Further, so long as that product’s label contains the “made with real fruit claim,” it will include the percentage of fruit in the product.

For its part, General Mills said “we disagree with CSPI on the merit and substance of the case, but we both agreed to resolve the matter to avoid further litigation.”

Quoted in Chicago Daily Law Bulletin on RumChata v. ‘Orchata trademark dispute.

I am honored to have been quoted by the Chicago Daily Law Bulletin for an article titled “RumChata Fights to Protect .”  This article relates to the trademark litigation between Agave Loco and Sazerac discussed in this prior post.  Please see the Law Bulletin’s article here.