Monthly Archives: March 2013

“Greek Yogurt” in UK Must Be From Greece

Generally, food products with a name that includes a geographic region must originate from that region.  After all, if you purchase “Kalamata Greek Olives” you would expect them to come from Greece.  On the other hand, some product names with geographic term have evolved such that consumers understand that they  describe a type of product rather than the product’s geographic origin.  “French fries” and “Belgian waffles” are prime examples.  So what does this mean for “Greek yogurt”?

In the UK, this issue was decided (for the time being) on March 26th when a judge sided with the Greek company FAGE and issued a permanent injunction against Chobani prohibiting it from marketing its US-made yogurt as “Greek” in the UK.  FAGE was the first brand of “Greek yogurt” introduced in the U.S. back in 1998 while Chobani entered the market in 2007.  FAGE gave the yogurt “Greek” in its title because, presumably, Greek yogurt was more appealing than strained yogurt.  FAGE and “Greek yogurt” product category went on to enjoy massive success.

According to its UK lawsuit, FACE claims that only yogurt made in Greece should be called ‘Greek’ and yogurt made elsewhere should be described as ‘Greek-style’.  Chobani disagreed and asserted that “Greek” refers to the straining process used to make the yogurt and not a product made in Greece.  On its website, Chobani says: “The word ‘Greek’ describes how we make the yogurt in our products.  We make our yogurt the authentic way, never adding any thickeners.  Instead, we use a centuries-old technique of straining to remove excess liquid. This is why Chobani is so thick, creamy and has two times more protein per serving than regular yogurt.”  A High Court UK judge ruled that Chobani was misrepresenting its product to British consumers by using labeling that calls the product “Greek yoghurt.”  In particular:

I have concluded that, in fact, a substantial proportion of those who buy Greek yoghurt in the UK (probably well in excess of 50% of all Greek yoghurt buyers) think that it is made in Greece, and that the proportion of those Greek yoghurt buyers to whom it matters is substantial, even though it is a modest proportion of yoghurt eaters as a whole.  It follows that, in my judgment, FAGE has succeeded in demonstrating that substantial goodwill has become attached to the use of the phrase Greek yoghurt, in the sense that it creates pulling power, rather than merely denotes a geographical origin to which buyers are indifferent.

The ruling does not bar Chobani from labeling its British product as “Greek style” yogurt.  Notably, unlike hundreds of products in Europe that enjoy a special “protected” status from European authorities (such as Parmesan cheese or Champaign that the EU says have distinct flavors and qualities from specific geographic regions), the term ‘Greek yogurt’ does not have special protected status.

The order can be found here and additional information here.

Natural Products Association Calls for National Standard on GMO Labeling

In what some observers may view as a surprise, the Natural Products Association (NPA) has called for a national standard on GMO labeling.  Over the past 4-5 years, the organic industry has often been at odds with non-organic producers of “natural” food products.  This tension resulted from an overlap of targeted consumers and the fact that “natural” products are less costly to produce and are not governed by a strict definition of “natural” in contrast to the rules and regulations of the USDA’s National Organic Certification Program.  More recently, however, foods marketed as “natural” or “all natural” have been accused by some consumer groups and in numerous class action suits of misleading consumers because they contain GMO’s that are allegedly non-natural.  It’s unclear, though, whether this has impacted the NPA’s position on this issue.

In its announcement, the NPA stated that it’s working towards establishing guiding principles regarding the labeling of foods and dietary supplements containing or produced by GMO.   In this regard, the NPA’s board of directors adopted the following concepts should be included:

  • NPA believes consumers have the right to be informed whether genetically modified components are in their foods.
  • NPA supports and encourages the voluntary labeling on non-GMO foods.
  • NPA believes that consideration of federal law promoting a uniform standard is warranted to avoid separate standards for GMO labeling at the state level.
  • NPA opposes a private enforcement provision, which encourages abusive litigation, to impose compliance.
  • NPA supports the FDA consistently reviewing the concept of bio-equivalency of genetically modified ingredients in light of the most recent scientific studies.

Please read the NPA’s white paper on its position here.

“Derby Pie” Trademark Dispute

FoodManufacturing.com has a nice article on a trademark dispute in which Kern’s Kitchen has filed suit against Claudia Sanders Dinner Houses over the latter’s alleged “use” of the term “Derby Pie.”   Kern’s Kitchen created the “Derby Pie” (a specific and evidently delicious chocolate-nut pie) in 1954 and owns the trademark for this term.   According to FoodManufacturing, the dispute is centered on whether servers at the restaurant were calling their pie “Derby Pie” even though the menu simply advertises “Claudia’s Kentucky Pie — Made With Chocolate Chips and Pecans.”  Notably:

Kern’s Kitchen hasn’t been shy about challenging others in court.  In recent years, it has sued Bon Appetit magazine and a Frankfort restaurant called Rick’s White Light Diner.

Bon Appetit won a legal victory when a judge in 1987 found the name to be generic, but the U.S. 6th Circuit Court of Appeals overturned that decision.

Please see the complete article here.

Whole Food’s Business Case for GMO Labeling

As noted in my prior post, Whole Foods’ has decided to require that any foods sold in its U.S. and Canadian stores that contain genetically modified organisms (GMOs) be labeled as such by 2018.   This announcement was made without any mention by Whole Foods about alleged or potential dangers from eating GMO food.   Instead, as BusinessWeek reports,  Whole Foods is basing its decision on supporting “the consumer’s right to know.”  Further:

In an interview last year with Bloomberg Businessweek, [Walter] Robb [co-CEO of Whole Foods] made the business case for higher prices in the name of transparency: “I suppose there will always be a market for the cheapest possible food, but issues around water quality, farm workers, all that stuff, keep surfacing.  There will be no place to hide in terms of what your practices are and what you’re doing.”

It will be interesting to see how Whole Food’s decision impacts its suppliers and other retailers.  Stay tuned.

Whole Foods to Require GMO Labeling

See New York Times article at – http://www.nytimes.com/2013/03/09/business/grocery-chain-to-require-labels-for-genetically-modified-food.html?src=me&ref=general&_r=0

More to follow.

UPDATE: Frito-Lay Loses “Battle of the Bowl Chips”

Last year, I posted about the lawsuit brought by Frito-Lay against Ralcorp which accused the private labeling company of infringing Frito-Lay’s federally-registered trademark for bowl-shaped tortilla chips by manufacturing  MEDALLION BOWLZ tortilla chips on behalf of Wal-Mart. 

Now, a jury in Plano, Texas has sided with Ralcorp, which is now owned by ConAgra.   “We are pleased with the jury’s decision in our favor,” ConAgra said in a statement.  “We believe private brands offer a strong value to consumers, and we are delighted to bring terrific choices to shoppers.  We will continue to develop and make distinctive, high-quality food like this chip.”

Frito-Lay said that it was disappointed in the ruling and is weighing its legal options.

Anheuser-Busch Fights Back Against Watered-Down Beer Claims

Anheuser-Busch InBev has responded to the class action lawsuits accusing it of selling watered-down Budweiser.  Knowing the importance of brand image, the above ad was published in 10 major U.S. newspapers on Sunday, March 4th and features a can of water that A-B donates to the American Red Cross for disaster relief.  See the full ad here.

The lawsuits in question were filed in Pennsylvania, California and other states, and claim that the labels of Budweiser, Michelob and other beers overstate the alcohol content actually in the beer.  According to the lead lawyer, Josh Boxer, the  lawsuits are based on information from former employees at the company’s 13 U.S. breweries.  Boxer asserts that excess water is added just before bottling that cuts the stated alcohol content by 3 percent to 8 percent.

On February 27th, A-B issued the following statement on the lawsuit:

The claims against Anheuser-Busch are completely false, and these lawsuits are groundless.  Our beers are in full compliance with all alcohol labeling laws.  We proudly adhere to the highest standards in brewing our beers, which have made them the best-selling in the U.S. and the world.

This will be an interesting case to watch, especially because it appears, at first blush, that the case will boil down to the basic factual question of the A-B’s bottling practices and the specific alcohol content of the beer in question.