• The District of Columbia Court of Appeals has revived a case filed in 2016 by the Animal Legal Defense Fund (ALDF) accusing Hormel Foods of falsely advertising lunch meats and bacon as a “Natural Choice.” The court’s decision to reverse the trial court’s judgment and remand for further proceedings has already been described by animal rights activists as a “watershed ruling for consumer protection of all types.”
  • In the original lawsuit, the ALDF argued that Hormel’s national advertising campaign “Make the Natural Choice” was false and misleading because “there is nothing natural about the way Hormel’s Natural Choice products are produced.” The ALDF alleged that reasonable consumers would expect meat products labeled as “natural” to “be derived from animals who were provided access to the outdoors, were given opportunities to graze or forage,” and not fed artificial growth hormones.
  • The District of Columbia Court of Appeals disagreed with the trial court and determined that the ALDF does have standing to bring the case and that federal labeling laws do not preempt ALDF’s claims, which only focus on Hormel’s advertisements, and not the labels themselves. According to the court, although the USDA may have approved the Natural Choice product labels, that does not mean that “whatever claims pass USDA scrutiny for labeling purposes are necessarily fair game to broadcast in all manner of advertisements.”
  • The court’s ruling means the case may now move forward on procedural grounds, but the court has not yet ruled on the merits of the case. Keller and Heckman will continue to monitor and report on any developments.
  • On September 9, 2021, the Food and Drug Administration (FDA) and Federal Trade Commission (FTC) jointly issued warning letters to 10 companies for illegally selling dietary supplements claiming to treat diabetes.
  • The claims were found on the 10 companies’ websites, social media pages, and Amazon storefronts, and included a variety of statements regarding the products’ claimed abilities to control blood sugar and help diabetics. Therefore, because the advertising materials indicate that the products are intended for use in the cure, mitigation, treatment, or prevention of disease, they are considered drugs under the Federal Food, Drug, and Cosmetic Act (FDCA), even if advertised as dietary supplements. And, because the products have not been approved by FDA as drugs, under the FDCA, they are considered adulterated once introduced into interstate commerce.  Further, by the authority of the FTC Act, the letters also demand that companies cease and desist making claims that are not substantiated by competent and reliable scientific evidence.
  • We note that that by agreement the FDA has primary jurisdiction over labeling of dietary supplements while the FTC has primary jurisdiction over the advertising of dietary supplements. However, the term “labeling” is broadly interpreted and can include websites and other materials that are also considered advertising. Thus, as is the case here, both agencies may share jurisdiction and decide to act to remedy unlawful behavior.

Rum Blend Only As Old As Its Youngest Component, Suit Says (subscription to Law360 required)

  • On September 9, 2021, a complaint was filed in the U.S. District Court for the Central District of California against Diageo North America.  The proposed class of plaintiffs allege that deceptive packaging led them to pay a premium for Ron Zacapa Centenario under the mistaken belief that the product contained only rum aged 23 years.
  • This new class action lawsuit is bolstered largely by the claim that statements on a cylinder that holds the bottle of rum constitute an age statement and that the age statement violates the Alcohol and Tobacco Tax and Trade Bureau’s (TTB) rule under 27 CFR 5.40(e) which permits a voluntary age statement in the form “__ years old,” with the blank to be filled in with the age of the youngest distilled spirits in the product.  The plaintiffs contend that a phrase “SISTEMA 23 SOLERA,” which appears in bold font, adjacent to the product name “Ron Zacapa Centenario” in the upper to middle part of the package, together with the words “Aged At A High Altitude in Oak Barrels,” which is part of a phrase printed in smaller font near the bottom of secondary packaging for the rum, imply that the product consists entirely of rum that has been aged 23 years but, in fact, is made by a solera method of stacking multiple layers of aging barrels on top of each other in a manner that results in a blend of rums aged from 6 to 23 years.
  • As a reminder to our readers, there is no private right of action to enforce federal labeling regulations, although such regulations, especially FDA’s food labeling regulations in Part 21 of the Code of Federal Regulations, are frequently invoked in deceptive advertising lawsuits as evidence of consumer deception.  Keller and Heckman will continue to monitor and report on this case and other food litigation news.

 

  • On September 2, a coalition of consumer groups, foodborne illness survivors, poultry industry, academic scientists, and other food safety leaders sent a letter to USDA Secretary Tom Vilsack requesting a meeting to discuss the Agency’s regulatory approach to ensuring the safety of poultry. Consumer groups, the Center for Science in the Public Interest (CSPI), Consumer Federation of America, Consumer Reports, and Stop Foodborne Illness joined poultry producers, Butterball, Perdue Farms, Tyson Foods, and Wayne Farms to ask for modernized, science-based USDA poultry food safety standards that are objective, risk-based, and flexible enough to adapt to evolving science.
  • Foodborne pathogens are a significant threat to public health in the US. Salmonella and Campylobacter, which are commonly found in poultry, account for over 70% of all foodborne illnesses tracked by the CDC. Those two pathogens account for approximately 3 million illnesses in the US annually, and cost over 6 billion dollars.
  • According to the letter, reduction in foodborne illness has been at a standstill even though recognized best practices for the pathogens have advanced. In order to make progress and to achieve the Healthy People 2030 targets, the letter’s undersigned parties urged FSIS to make significant changes to its regulatory program and food safety standards, guided by the following principles and conclusions:
    • Modernized standards should be objective, risk-based, achievable, enforceable, and flexible enough to adapt to emerging evidence and the latest science.
    • A modernized Hazard Analysis and Critical Control Point (HACCP) framework should address risk reduction across the full production process from raw material to finished packaging, including defining responsibility of poultry processors to consider pre-harvest practices and interventions in their HACCP plans.
    • Salmonella and Campylobacter should be addressed in parallel but separate proceedings as larger knowledge gaps exist for Campylobacter than Salmonella and different timelines and risk mitigation approaches may be necessary.
    • Ongoing research is needed to support continued progress towards reducing Salmonella and Campylobacter, including epidemiologic data and analysis to improve attribution of illness to specific commodities and products
  • Keller and Heckman will continue to monitor this matter and report on any updates.
  • On September 3, 2021, the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS) published an advanced notice of public rulemaking (ANPR) to solicit comments and information regarding the labeling of cell-cultured meat and poultry products.
  • By way of background, in 2019, FSIS and the U.S. Food and Drug Administration (FDA) agreed to jointly oversee the production of cell-cultured products from animals traditionally under FSIS jurisdiction (livestock, poultry, and catfish). Under the agreement, FDA is charged with overseeing cell collection, growth and differentiation, while FSIS is responsible for cell harvesting, processing, packaging, and labeling. FDA is also entirely responsible for the regulation of cell-cultured seafood products other than catfish (as these foods are traditionally regulated by FDA), although the agencies agreed to develop joint principles for labeling to ensure a consistent approach. To that end, the ANPR states that FSIS will consider comments submitted in response to FDA’s Request for Information (RFI) on the labeling of cell-cultured seafood. (See RFI Blog Post).
  • Through the ANPR, FSIS is seeking comment on a broad range of questions related to labeling of cell-cultured meat and poultry products, including the foundational question of whether labeling should differentiate cell-cultured products from traditionally slaughtered products, and if so, what terms should be used.  A detailed list of questions regarding cell-cultured labeling options for which FSIS is soliciting comments can be found in the ANPR. Additionally, FSIS is requesting economic data and consumer research so that it can better understand the animal cell culture industry. Questions of particular interest to FSIS (e.g., expected number of market entrants) can again be found in the ANPR.
  • FSIS will review the labels of any cell-cultured meat or poultry products that are marketed before rulemaking is completed and ensure that the cell-cultured products are clearly differentiated from slaughtered meat and poultry products, although such labels may need to be changed once final regulations are implemented.  Comments to the ANPR are due by November 2, 2021.  Please let us know if you are interested in submitting comments in response to this ANPR.
  • On August 20, 2021, an Iowa federal judge dismissed a May 2021 lawsuit filed in Iowa federal district court by the Iowa Pork Producers Association (“IPPA”) and three Iowa pork companies, challenging the constitutionality of California’s Proposition 12 (“Prop 12”), California’s animal welfare law affecting food producing animals.  The U.S. District Court for the Northern District of Iowa granted California’s motion to dismiss after concluding that Iowa pork producers failed to establish that the court had personal jurisdiction over the California state officials named in the case.  Additionally, the court concluded that the complaint failed because Prop 12 applies generally to pork and veal production without regard to the state of origin.
  • As a recap from our 2019 blog post on Prop 12, California voters passed this law as a ballot initiative in the November 2018 election.  The new law established the standard for confinement of certain farm animals and bans the sale of eggs, veal, and pork products that do not comply with the new confinement standards.  The 2018 law amended the existing California Health and Safety Code provisions for Farm Animal Cruelty, regulating the treatment of farm animals.  Meat producers, farmers, and agricultural associations have repeatedly challenged the constitutionality of Prop 12, arguing that it violates the Constitution’s commerce clause by placing an undue burden on interstate commerce.
  • The dismissal in Iowa is another loss for the animal agricultural industry, as the courts dismissed a similar lawsuit in May 2020.  In addition, the North American Meat Institute (NAMI) failed to convince the U.S. Court of Appeals for the Ninth Circuit to ban the implementation of Prop 12 in late 2020, and the Supreme Court declined to hear an appeal of the NAMI case.  Prop 12 challenges continue, as Senators from Kansas, Iowa, Mississippi, and Texas recently introduced a bill, the Exposing Agricultural Trade Suppression Act (EATS Act), in August 2021, but the bill has yet to reach the Senate.
  • Keller and Heckman will continue to monitor this matter and report any updates.
  • On August 31, the Ninth Circuit decertified a class of consumers that claimed Coca-Cola falsely labeled its drinks as having no artificial flavors when they contained phosphoric acid (subscription to Law360 required). This decision reversed a class certification order from a California federal judge, and agreed with Coca-Cola that the consumers lacked standing to pursue injunctive relief because they have not shown that they are at risk of suffering future harm.
  • The consumers alleged they were misled by Coke’s labels that claimed they had “no artificial flavors” and “no preservatives added” “since 1886” because the labels did not disclose the addition of phosphoric acid, which can be used as both a preservative and artificial flavor. That being said, several of the named plaintiffs stated that they were not actually concerned with the use of phosphoric acid, but were worried that Coca-Cola was not truthful on its product labels. In fact, those consumers stated that they would be interested in purchasing Coke gain if the labels were accurate, regardless of whether the product contained phosphoric acid.
  • According to the Ninth Circuit, the desire for Coca-Cola to truthfully labels its products was not enough to demonstrate any future harm. In the decertification memorandum, the court found that “[n]one of the plaintiffs in this case allege a desire to purchase Coke as advertised, that is, free from what they believe to be artificial flavors or preservatives, nor do they allege in any other fashion a concrete, imminent injury. Instead, as plaintiffs explained in their brief, they have ‘each stated that if Coke were properly labeled, they would consider purchasing it.’ Under governing law, such an abstract interest in compliance with labeling requirements is insufficient standing alone.”
  • Three class-actions lawsuits filed in district courts in Illinois allege that products containing vegetable oils, and not dairy fat, are falsely and misleadingly described as “fudge.” (See Reinitz v. Kellogg Sales Company, Bartosiake v. Bimbo Bakeries USA, Inc., and Lederman v. The Hershey Company).  The lawsuits, which are all filed by Sheehan & Associates, P.C. and are substantively identical, have targeted Kellogg Sales Company’s “Frosted Chocolate Fudge,” Bimbo Bakeries USA, Inc.’s “Chocolate Fudge Iced Cake,” and the Hershey Company’s “Hot Fudge” respectively.
  • The lawsuits allege that fudge is a candy made from the mixing of sugar, butter, and milk, and that the replacement of dairy fats (butter and/or milk) with vegetable oils in each of the three products at issue constitutes deceptive advertising.  In support of these claims, Plaintiff cites a hodgepodge of sources including three recipes from around the turn of the 20th century, a Wikipedia entry, Molly Mills, who is apparently “one of today’s leading authorities on fudge,” and a 1982 Bulletin from the International Dairy Federation.
  • Plaintiffs have not, however, provided any extrinsic evidence of consumer deception (e.g., market studies), and such information will almost certainly have to be produced for such a case to ultimately succeed. We have previously reported on several other class actions which allege that the replacement of dairy fat with vegetable oil is misleading to consumers (see here and here), and we will continue to monitor and report on the outcomes of these cases.

Frito-Lay’s ‘Hint of Lime’ Chips Have No Lime, Buyers Say (subscription to Law360 required)

  • A proposed class action filed against Frito-Lay on August 25, 2021 in the U.S. District Court for the Central District of California claims that the company’s “Hint of Lime” Tostitos tortilla chips are misleadingly labeled because they contain only “Natural Flavors” and not appreciable amounts of whole lime juice.  The claims are based on alleged violations of California consumer protection laws, federal warranty law, federal trade law, and unjust enrichment.
  • As we previously reported, Frito-Lay faces similar claims in Illinois that likewise hinge largely on the product containing an image of a lime and the statement “Here’s Another Hint – Squeeze in More Flavor With Some Salsa,” which allegedly imply that lime has been squeezed into the product.  Both lawsuits also make much of the fact that a statement, “Flavored Tortilla Chips,” which the plaintiffs characterize as a “disclaimer,” appears at the bottom corner where crumpling of the package hides it from view.  Under federal flavor labeling regulation, however, a lime flavored product can be flavored only with “natural flavoring” derived from lime with no disclaimer required where the product is not purported to contain lime for nutritive value (e.g., vitamin C content).
  • The California lawsuit additionally alleges that after receiving notice of the plaintiffs’ allegations, Frito-Lay “engaged in label changes on its website” by adding the parenthetical, “including natural lime flavor,” after “Natural Flavor” in the list of ingredients.  The potential significance of this new factual allegation is not elucidated in the complaint.
  • Keller and Heckman will continue to monitor and report on the outcome of these “Hint of Lime” cases as well as the many other flavor labeling challenges brought by plaintiffs’ lawyers claiming harm to consumers from allegedly misleading food labeling.
  • FDA released per- and polyfluoroalkyl substances (PFAS) testing results yesterday from its first survey of nationally-distributed processed foods collected for the Total Diet Study (TDS). 164 of the 167 tested foods did not contain detectable levels of PFAS. FDA’s update states that the three samples that do contain detectable PFAS levels do not present a human health concern.
  • The comprehensive analysis of the results published online provides more information on the tested foods that did contain detectable levels of PFAS: perfluorooctanesulfonic acid (PFOS) and perfluorononanoic acid (PFNA) were found in frozen fish sticks/patties, PFOS and perfluorodecanoic acid (PFDA) in canned tuna, and PFOS in protein powder. The substances were detected at concentrations below 150 ppt.
  • While the sample sizes are limited and the results do not provide an accurate description of PFAS levels in the general food supply, FDA’s TDS studies will help the agency determine if additional sampling is needed for any foods. As we reported last month, FDA has also published results from its testing of 94 food samples, including in raw fruits and vegetables, meats, poultry, and fish. Of these PFAS were detected in a single sample of cod but not at levels that indicated a human health concern. FDA has stated it plans to conduct a targeted survey of PFAS in commonly-consumed seafoods.