Monthly Archives: April 2013

“Facts Up Front” Launches New Website — Claims Labels Now Used on 90% of Some Food Categories

The GMA announced launched a new website last week for its Facts Up Front campaign to “educate and empower consumers” — which is the asserted goal of the labeling scheme itself.  GMA also claimed that the Facts Up Front label is now used on 90% of foods in some categories, with usage highest among cereals, beverages and dry goods.

“Facts Up Front” is led by GMA and the Food Marketing Institute and was  launched in January 2011 as a type of “self regulation” by the industry.   The Facts Up Front label is intended to highlight key nutrient information on the front of packages.  Specifically, the label shows calories per serving and information on three nutrients to limit in your diet: saturated fat, sodium and sugar.  Labels may also have information on one or two nutrients that Americans need to get more of as part of a healthy diet.  These “encouraged” nutrients will only appear on a package if the product contains 10 percent or more of the daily value per serving of the nutrient and meets the FDA requirements for a “good source.”

According to GMA:

Facts Up Front empowers consumers to make informed choices.  It arms them with critical nutrition information about their favorite products,” said Pamela G. Bailey, President and CEO of the Grocery Manufacturers Association. “But to make the most of Facts Up Front, Americans need to understand what that information means, and how it relates to their calorie and nutrient needs.  Through this website, we are providing consumers with the knowledge and tools they need to build a healthful diet.”

Because no FOP labeling scheme is perfect, the government is unlikely to step in with its own regulations for FOP labeling so long as the Facts Up Front scheme gains wide industry acceptance.

Manufacturer of “Tommy Guns” Files Suit Against Tommy Guns Vodka

Saeilo Enterprises, Inc., whose Kahr Arms divisions is a manufacturer of firearms  including the Thompson submachine gun (a.k.a. “Tommy Gun”),  filed suit on March 27, 2013 against Alphonse Capone Enterprises, Inc.  for selling Tommy Guns Vodka.  As shown above, this vodka is also sold in a bottle shaped just like the well-known gun that gained notoriety in the “gangster era” of the 1920’s.

Saeilo not only claims common law trade dress rights in the design of the Tommy Gun, but is the owner of United States trademark Reg. No.  2,885,628 for the word mark “Tommy Gun” and Illinois state registration number 100887 for the Tommy Gun design.

Notably, the Defendant had also obtained federal trademark registrations for  the Tommy Gun word marks and for the bottle design, which date back to 2004 and 2005.  See Registration Nos. 2,849,028, 2,696,412, 2,955,440 and 3,402,327.

Based on the alleged infringement of these rights, Saeilo has alleged ten different claims, including  trademark infringement,  trademark dilution, unfair trade practices and for cancellation of the defendant’s registered marks.

Please see the Complaint here.

Judge Dismisses AriZona “All Natural” Lawsuit

Three years ago, AriZona Beverage Co. was hit with a class action lawsuit challenging its marketing and selling of iced tea beverages labeled “All Natural,” “100% Natural,” and “Natural” because they contain high fructose corn syrup (HFCS) and citric acid — which are allegedly artificial and man-made.   Class certification was allowed under Rule 23(b)(2) for purposes of injunctive 
and declaratory relief.  But on March 28, 2013,  U.S. District Court Judge Seeborg (N.D. Cal.)  granted AriZona’s renewed motion for summary judgment and class decertification.

Earlier in the case, plaintiffs had argued that it would “have experts that will line up and they’ll be able to show, pursuant to FDA regulation, that this is a chemical process, it’s not a biological process.”  But in response to the summary judgment motion, they simply asked the Court to “take judicial notice of United States Patent law” and rule that that HFCS is not natural because patents have been issued for the process of producing it.  In a significant retort, the Court noted:

[Plaintiffs’] argument is that if HFCS were a naturally occurring substance such as “a new mineral discovered in the earth or a new plant found in the wild” it would not be patentable.  ….  “United States Patent law” is not a proper subject of judicial notice under Federal Rule of Evidence 201 and the request is denied.  Plaintiff’s request is properly characterized as an argument that HFCS is not natural as a matter of law.  But plaintiffs have cited no legal authority supporting their contention that if the process to produce an ingredient is patented, that fact, in and of itself, automatically renders it artificial.  This is merely an extension of their rhetoric that HFCS is artificial because it “cannot be grown in a garden or field, it cannot be plucked from a tree, and it cannot be found in the oceans or seas of this planet.”  ….  In the face of a motion for summary judgment, rhetoric is no substitute for evidence.

The Court then turned to the issue of whether the labels may nevertheless be misleading because AriZona admitted it changed its labels to add the language “All Natural Tea,” “No Preservatives,” “No Artificial Color,” and “No Artificial Flavor” because some customers were confused by the terms 100% natural and asked “100% natural what?”  Plaintiffs argued that this was an admission that the labels were confusing.  The Court rejected that argument, noting that this “admission” simply indicated that “everything in” the beverages is natural, and “that defendants included the additional claims on the labels specifying that they contain all natural tea without preservatives, artificial color, and artificial flavor to clarify that to confused customers.”

Next, the Court also noted that “plaintiffs have no evidence to support their prayer for restitution and disgorgement” and did not “offer not a scintilla of evidence from which a finder of fact could determine the amount of restitution or disgorgement to which plaintiffs might be entitled if this case were to proceed to trial.”

Finally, the Court sternly criticized plaintiffs’ counsel in the context of decertifying the class, noting that they had “been dilatory and has failed to prosecute this action adequately.”

Please see complete ruling here.