Monthly Archives: August 2013

The Battle Over “Whole Grain” Labeling Standards

In 2006, the FDA issued draft guidance regarding whole grain labeling statements.  Among other things, the FDA noted:

Manufacturers may make factual statements about whole grains on the label of their products, such as “100% whole grain” (as percentage labeling under 21 CFR 102.5(b)) or “10 grams of whole grains” (21 CFR 101.13(i)(3)) provided that the statements are not false or misleading under section 403(a) of the Federal Food, Drug and Cosmetics  Act … 21 U.S.C. 34 3(a)) and do not imply a particular level of the ingredient, i.e., “high” or “excellent source.”   In addition, manufacturers may use health claims relating whole grains to a reduced risk of coronary heart disease and certain cancers on their product labels for qualifying foods based on notifications FDA received under section 4o3(r) (3) (C) of the act (21 U.S.C. 343(r)(3)(C)) (health claims based on an authoritative statement of a scientific body)

FoodNavigator-USA has an excellent article on the subsequent comments and discussion over the criteria for whole grain labeling statements.  Among other tidbits, the article notes a significant disagreement between Kellogg’s and General Mills and a proposal by the Center for Science in the Public Interest based on the concern that “companies exploit the whole grain halo by tacking it on products made with white refined flour.”  Please see the complete article here.

Quoted in Forbes.com article: David v. Goliath, Trader Joe’s Sues Independent Retailer “Pirate Joe’s”

It is my pleasure to have been quoted in an article for Forbes.com titled David v. Goliath, Trade Joe’s Sues Independent Retailer “Pirate Joe.”   The article concerns a lawsuit filed by the specialty grocery store chain Trader Joe’s against Michael Hallatt and the store he operates in Vancouver called “Pirate Joe’s.”  Mr. Hallatt’s business involves purchasing Trader Joe’s products in the U.S. that he then resells at his store in Canada.  I’m quoted as follows:

David L. Ter Molen, partner and member of the food industry team at Chicago-based Freeborn & Peters LLP, points out that Trader Joe’s may be particularly concerned because food products (even those that aren’t fresh or frozen) have a limited shelf life and special care is needed in transporting and storing those products. “Here, Trader Joe’s has lost control over how its own products are handled and sold,”  Ter Molen explains. “There is a strong concern that Trader Joe’s reputation would be negatively impacted if, for example, consumers became sick from eating Trader’s Joe products purchased at Michael Hallatt’s Pirate Joe’s store,” he says.

Not to mention that staying mum could encourage an association between the two stores, even though Hallett’s tried to make it clear there is no affiliation. “If Trader Joe’s did nothing, then this fact could be used against [it] in future litigation against a potential infringer,” Ter Molen says.

Please see the complete article here.  As an FYI, I’m  misquoted at the end of the article discussing the issue of whether Lanham Act claims can be asserted for conduct occurring in Canada.  In discussing one factor in the test for whether Lanham Act claims can extend to extraterritorial conduct, I’m quoted as saying, “It’s difficult to think of scenarios where Trader Joe’s may have lost business opportunity or suffered monetary harm due to defendant’s conduct.”  That line is actually  from the defendant’s motion to dismiss and I was stating that this is an argument that Trader Joe’s will need to overcome.  I’ll provide updates on whether it is able to to do and move forward with its suit.

“Evaporated Cane Juice” Lawsuits Continue

There has been a recent wave of lawsuits targeting food products that list “evaporated cane juice” (or ECJ) as an ingredient rather than “cane sugar,” “dried sugar cane syrup” or, more simply, “sugar.”   Recent defendants include Trader Joe’s and Chobani.  The gist of such claims is that this deceives consumers into believing they are purchasing a product with healthier ingredients.  And plaintiffs have sought to buttress these claims by citing (a) draft FDA guidance from 2009 stating that companies should not refer to the sweetener using a name that suggests the ingredient is juice, and (b) certain warning letters asserting that “evaporated cane juice is not the common or usual name of any type of sweetener.”

In July 2013, WWF Operating Co., which does business as White Wave Foods, settled a similar class action lawsuit  filed in April 2013 in the Southern District of Florida.  Under the settlement, White Wave Foods agreed to give a partial refund to consumers and change the term on its ingredients list from ECJ to “organic cane sugar” or “cane sugar.”

Significantly, a suit alleging similar ECJ claims was also filed against White Wave Foods in California on April 29, 2013.  Accordingly, White Wave Foods now seeks to dismiss those claims based on the position, among others, that the suit is “barred by issue and claim preclusion principles” because plaintiffs were members of the class bound by that settlement.  Notably, White Wave Food’s motion to dismiss also contends that since “ECJ became available commercially in the 1990s it has appeared on thousands of food labels” and that its “widespread use is, unsurprisingly, most prevalent in healthy foods at the industry’s vanguard, stirring no controversy until this recent tsunami of lawsuits was filed.”   The extent to which such lawsuits will alter the practice of using the term “evaporated cane juice” on ingredient lists remains to be seen.

FDA Defines “Gluten-Free” for Food Labeling

Just in case anyone missed the announcement last week, the FDA published a new regulation defining “gluten-free” for voluntary food labeling.  The FDA asserted that this uniform definition will “will help people with [celiac disease] make food choices with confidence and allow them to better manage their health.”  Among other things, the definition requires a food must contain less than 20 parts per million of gluten and applies with equal force to similar claims such as “no gluten,” “free of gluten,” and “without gluten” to meet the definition for “gluten-free.”  Food manufacturers will have a year after the rule is published to bring their labels into compliance with the new requirements.

The FDA was directed to issue the new regulation by the Food Allergen Labeling and Consumer Protection Act (FALCPA).  For more information, please see the FDA’s Q&A on the new definition here.

Update: Ben & Jerry’s Obtains Consent Judgment

Ten months ago, I wrote about Ben & Jerry’s obtaining a temporary restraining order against the maker of adult videos with titles that echoed the trademarked names of Ben & Jerry’s ice cream flavors and packaging that copied design elements of its cartons.  This week, the defendant, Caballero Video, also known as Rodax Distributors Inc., agreed to a consent judgment that effectively makes that TRO permanent.  For more information on the judgment, see this report from ABC News.