Welcome to the 2023 inaugural issue of our newsletter, where we explore litigation and regulatory trends and developments from around the food, dietary supplement, and personal care industries.  Like most everybody else, we’ve given up on our new year’s resolutions, so let’s go to the food court.

The Food Court – Vanilla Cases Melt Away But Other Ingredient Theories Rise

With courts expressing continued skepticism about vanilla bean false advertising theories, plaintiffs are targeting a slew of other ingredient-based false advertising angles.  For example, in Patoni et al. v. Spindrift Beverage Co., the plaintiff claims that Spindrift’s “clean” branding and messaging trumpeting that the drinks contain only water and fruit are false and misleading because the products also contain citric acid, which is plainly disclosed on the ingredient declaration.  Because many courts do not expect consumers to look beyond a product’s front panel to read ingredient declarations, those three words – yup, that’s it – which are pervasive in Spindrift’s branding, are likely to be highly significant because they expressly tell the consumer that there is nothing else in the products.

Where consumers are basing their lawsuits on assumptions rather than express claims, courts are more likely to view them as… half-baked.  An Illinois court dismissed a claim that Bimbo Bakery’s brown bread was falsely advertised because the bread’s dark color, visible flecks of grain and “brown bread” name caused consumers to believe it has a higher grain content, when it is actually made with enriched flour and has only 4% of the daily fiber value.  The court found that the plaintiff’s assumptions about the bread content were unreasonable.  Even if the bread’s color and obvious presence of grain suggested that the product had whole grains, it was no guarantee of the product’s precise grain content.  The court stated: No reasonable consumer could conclude what percentage of whole wheat the bread contains merely by these toppings.

Continue Reading Food + Personal Care Industry Insights – January 2023

Anyone who has strolled the supermarket alcohol aisle in recent months may fairly stand in awe of the proliferation of boozy and not-so-boozy drinks in pretty packages, with small cans and pastel colors making it difficult to immediately discern whether they contain alcohol and, if so, how much.  According to Nielsen data, in 2021,

On October 4th, the FDA and CDC announced that the agencies have entered into a Memorandum of Understanding, renewing their collaboration to reduce the occurrence of foodborne illness in retail and foodservice establishments.  The stated purpose of the partnership is to “help increase the consistency and capacity of retail food protection programs

Food + Personal Care Litigation and Regulatory Highlights – January 2022Welcome to our 2022 inaugural issue of Food and Personal Care Litigation and Regulatory Highlights, where we explore trends and developments from around these industries.  It’s fair to say that the year has started off very busy in both the courtroom and the regulatory arena.  On this chilly winter day, our first stop is in California.

Prop 65

Our friends at Kelley Green Law Blog get the starting position for this issue by highlighting a precipitous uptick in the number of Prop 65 filings over the prior year.  While the Covid-19 pandemic caused all sorts of disruptions to society and the economy, at least one area of business has thrived over the last two years:  private plaintiff enforcement of California Proposition 65.  In 2020-2021, over 40% more Prop 65 actions were brought by private plaintiff “bounty hunters” than in the two years prior to the pandemic (2018-2019).  Compared to a decade ago, private plaintiff groups now initiate three times more Prop 65 actions each year, and five times more than in 2008.  Learn more here about the most frequently cited chemicals and those that are emerging, including PFAS.
Continue Reading Food + Personal Care Litigation and Regulatory Highlights – January 2022

UK’s ASA Roasts Oatly’s Climate-Friendly ClaimsIf you’re among the over 40% of U.S. consumers who vowed to change how you eat in the new year, fitting into pants that don’t have elastic waistbands may be one of numerous motivators.  For many consumers, climate considerations are increasingly among the dietary priorities, and 2022 looks likely to bring plates filled with climate-friendly

Earlier this week, Judge Cynthia Bashant of the Southern District of California granted a plaintiff’s second bite at the apple (or rather biscuit) to certify a class of purchasers of belVita breakfast biscuits in McMorrow v. Mondelez International, Inc.  The plaintiff alleged that Mondelez falsely labeled its belVita biscuits as providing “NUTRITIOUS SUSTAINED ENERGY;”  “NUTRITIOUS

Welcome to our monthly digest of litigation and regulatory highlights impacting the food and beverage industry.  February saw another win for industry on the vanilla front, a preemption win in California state court, and FDA continuing with COVID-19-related warning letters and foreign supplier verification enforcement.  Let’s take a look….

Litigation

Industry scored another win on

Welcome to our monthly digest of litigation and regulatory highlights impacting the food and beverage industry.  As it has been for many months, the story was mostly about what’s going on in the food court.  Let’s take a look….

Litigation

Vanilla, vanilla, and more vanilla….The plaintiff’s bar remains skeptical of any product labeled as vanilla. 

The Agriculture Marketing Service of the United States Department of Agriculture announced an agreement reached with Canada’s Food Inspection Agency that will provide U.S. organic dairy, beef, sheep, goat and bison producers with more streamlined access to the Canadian market. Canada now considers U.S. organic requirements for access to pasture and living conditions to be

On January 25, 2012, the Food Nutrition Service of the U.S. Department of Agriculture (“USDA”) issued a final rule that substantially modifies the menu planning and nutrition requirements for the National School Lunch Program and the School Breakfast Program. The rule, which is intended to improve the dietary habits of school children in grades K-12