Search results for: oklahoma

  • As an update to our coverage of on-going litigation of plant-based product labeling, an Oklahoma federal judge recently refused to block a state law that requires plant-based food companies include a disclaimer on labels if they use a meat term to describe their products. As our readers know, in September, Upton’s Naturals Co. and the Plant Based Foods Association filed suit against the state of Oklahoma challenging the constitutionality of the Meat Consumer Protection Act (“the Act”). The Act requires that plant-based food companies include a disclaimer the size of the product’s name if they use terms like “burger,” “hotdog,” “meatball,” “jerky,” “sausage,” “chorizo,” and “bacon,” even if the labels state the products are “meatless,” “vegan,” or “plant-based.”
  • Plaintiffs argued that the law was passed to prevent competition with the meat industry and violates the First Amendment. Upton’s Naturals had sought a preliminary injunction against the law. However, on November 19, U.S. District Judge Stephen P. Friot disagreed and ruled that the Act did not violate the Constitution.
  • Judge Friot said he had “no trouble” deciding that the speech at issue is potentially misleading to a reasonable consumer because Upton’s Naturals packaging includes terms like “bacon,” “hot dog,” “jerky,” and “meatballs.” Indeed, Judge Friot stated that “[w]hile plaintiffs argue that the government cannot make these meat-related terms potentially misleading by virtue of its definition of meat, the court notes that all of the meat-related terms, except burger, are also defined in the Dictionary by Merriam-Webster…to indicate they are animal-based.”
  • The judge rejected Upton’s Naturals argument that the U.S. Supreme Court’s 1980 decision in Central Hudson Gas & Electric Corp. should apply to the case, which held that a government may restrict commercial speech that is neither misleading nor about unlawful activity as long as the government has a substantial interest in restricting that speech. However, Judge Friot disagreed, stating that “the challenged provision of the act does not restrict speech as in Central Hudson. It requires disclosure of information.” Instead, Judge Friot applied the 1985 decision in Zauderer, which held that compelled disclosure of commercial speech comports with the First Amendment if the information is “reasonably related to a substantial governmental interest and is purely factual.”
  • Upton’s Naturals intends to appeal Judge Friot’s decision to the Tenth Circuit. We will continue to monitor any developments.
  • On September 16, 2020, Upton’s Naturals Co. and the Plant Based Foods Association filed a lawsuit against the state of Oklahoma, challenging the constitutionality of the Meat Consumer Protection Act (“the Act”), a recent law that requires plant-based food companies to include a disclaimer if they use a meat term, such as “burger,” “hotdog,” “meatball,” “jerky,” “sausage,” “chorizo,” and “bacon.”  In the lawsuit, plaintiffs argue that this law was passed to prevent competition with the meat industry and that it violates the First Amendment.  This law passed earlier this year and will take effect on November 1, 2020.
  • By way of background, the Act bars plant-based foods from being labeled with meat terms without a disclaimer, which must be the size of the product’s name, even if they are labeled “meatless,” “vegan” or “plant-based.”  The Act expressly prohibits advertising “a product as meat that is not derived from harvested production livestock.”  However, the Act states that “product packaging for plant-based items shall not be considered in violation of [the Act] so long as the packaging displays that the product is derived from plant-based sources in type that is uniform in size and prominence to the name of the product.”
  • States, including Arkansas, Louisiana, Mississippi, Missouri, Montana, South Dakota, and Wyoming have enacted laws similar to the one in Oklahoma.  The lawsuit against Oklahoma differs from previous complaints filed because of the size requirement included in the mandate.  In the lawsuit, plaintiffs state that the Act would require companies to redesign their labels specifically to suit the regulations in Oklahoma, which will require a substantial amount of time and resources in order to ensure compliance for a single state.  According to the complaint, no other state besides Oklahoma requires plant-based food labeling to have disclaimers the same size as their product names.
  • Violations of the law can include fines of up to $10,000 for each offense and are considered misdemeanors, which can result in up to a year in prison.  We will continue to monitor any developments.
  • In a 16-page order, U.S. District Judge William H. Orrick dismissed with prejudice customer Angela Kennard’s putative class action she filed last year against Kellogg Sales Co. over its use of the term “veggie” in several of its MorningStar Farms line of meatless products such as its burgers, hot dogs, chicken nuggets, patties, sausage links, bacon stripes, chicken wings and more. As our readers may recall, we reported on the Morningstar Farms “veggie” product labeling suit in April after Kellogg moved to dismiss the amended suit, citing several decisions in similar false labeling suits, such as the opinion issued by the Ninth Circuit in Becerra v. Dr Pepper/Seven Up Inc., where the panel ruled no reasonable customer would believe the company’s use of the term “diet” promised weight loss or management.
  • Plaintiff Kennard alleged Kellogg’s Morningstar Farms “veggie” products mislead consumers because the word “veggie” indicates that the main or only ingredients in the products are vegetables or made from vegetables, adding that customers she surveyed said they largely understood “veggie” to refer to vegetable-based products. Plaintiff accused the food and beverage company of violating California’s False Advertising and Unfair Competition laws, as well as a myriad of federal rules regulating the labeling of food products, and breaching warranties. However, on September 15, the  Northern District of California decided that Kellogg’s use of the term “veggie” on its labels is, at most, ambiguous and could refer to meat substitutes.
  • Judge Orrick said he didn’t think the term “veggie” on the products’ labels was false, misleading or misbranded or that it violates any federal food labeling requirements or state laws. The term “veggie” is ambiguous in the way it is used on the packaging, and the photos and information on the packaging doesn’t convey the product uses any particular vegetables. “I agree that the [Plaintiff’s’] allegations are implausible and do not support a reasonable inference that some significant portion of consumers would be misled into thinking the VEGGIE products are made primarily of vegetables as opposed to being vegetarian meat substitutes made from grains, oils, legumes, or other ingredients,” Judge Orrick maintained. Additionally, the product packaging features items that imitate meat, and consumers can readily identify the actual ingredients in the products on the packaging, the judge said.
  • In recent years, laws have been passed all over the country that restrict the use of the term “meat” in product labeling, including in Missouri, Arkansas, Oklahoma and others. For example, Missouri passed a law in 2018 prohibiting a seller or advertiser from “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.” Similarly, many of these other states’ laws require that only foods derived from food-producing animals may contain labels with terms like “meat, “burger,” “sausage” and the like.
  • In light of these recent labeling lawsuits and related legislation, marketers must be mindful of any representations they are making — whether in words or pictures — that might convey claims about a product’s contents. Keller and Heckman will continue to follow and report developments relating to the growing number of labeling claims challenges.
  • A proposed class action lawsuit filed on February 4 alleged that Poland Spring sparkling water, owned by BlueTriton Brands, Inc., misled consumers with the claim “a twist of lemon” because the water lacked “the amount and type of lemon ingredients expected by plaintiff and consumers” (subscription to Law360 required). As alleged in the complaint, customers expect the lemon flavor to come from lemon oil, lemon extract, or lemon juice, instead of natural flavors.
  • The plaintiff, Timothy Alexander, argued that the claim “a twist of lemon” refers to the “literal twisting of the outer portion of a lemon round,” and would cause a consumer to believe that the water contained actual lemon juice. However, as estimated in the complaint, the water likely only contained approximately 0.1 mL of lemon ingredients.
  • In addition to the “a twist of lemon” claim, the label also declared a characterizing flavor statement, or as referred to in the complaint as a “disclaimer.” Alexander argued that the “disclaimer” (i.e., “naturally flavored spring water with other natural flavors and CO2”) is “used so extensively on labeling that is has become the equivalent of a labeling tic, affixed to a majority of products with added flavoring,” and thus does not inform consumers that the product does not contain an appreciable amount of lemon.
  • The complaint stated that the value of the water purchased by Alexander was materially less than the value represented by BlueTriton, and that more water was sold at higher prices than would have been had the “a twist of lemon” claim not been declared on the label. Alexander seeks to represent customers in Illinois under the state’s customer fraud and deceptive practices law, as well as customers in Iowa, Arizona, Ohio, Alabama, Louisiana, West Virginia, Michigan, Texas, Arkansas, Virginia, and Oklahoma as part of a separate consumer fraud multistate class.
  • Keller and Heckman will continue to monitor and report on the outcome of the Poland Spring lawsuit as well as other labeling claim challenges.
  • FDA issued a corporate-wide warning letter to Midwestern Pet Foods, Inc. (Midwestern) on August 9, 2021. The letter states that inspections of the company’s pet food manufacturing plants revealed violations across multiple plants that were connected to illness or death of hundreds of animals that ate Midwestern’s dry dog food. The warning letter states that Midwestern’s manufacturing facilities presented serious violations of FDA’s Hazard Analysis and Risk-Based Preventative Controls (HARPC) requirements and that the company has not taken sufficient action to respond to FDA’s concerns about preventative measures for the presence of mycotoxins and Salmonella.
  • In January 2021, Midwestern recalled over one thousand lots of its SPORTMiX-brand cat and dog food products manufactured in the company’s Oklahoma plant because of the presence of aflatoxin. This was followed by a March recall of other Midwestern brands manufactured at the company’s Illinois plant where samples tested positive for Salmonella.
  • Some Midwestern product samples were found to contain levels of aflatoxin as high as 558 ppb; FDA considers pet food to be adulterated if it contains more than 20 ppb of aflatoxin. The adulterated products were linked to 130 pet deaths and more than 220 pet illnesses. Groups of consumers with pets that died or became ill after consuming the recalled products filed two proposed class action lawsuits in January and February 2021. We will continue to monitor and report on developments regarding these cases and FDA enforcement in pet food manufacturing.
  • Prairie Wolf Spirits announced on June 21, 2021, that it is recalling all lots of Prairie Wolf Distillery hand sanitizer in two sizes (16.9 ounce and 20 ounce) due to their resemblance to consumer level water bottles.
  • The company’s announcement states that the product’s intended use is for topical use but that the product’s likeness to water bottles poses a risk of ingestion.
  • The recalled hand sanitizer products were distributed to selected customers and consumers nationwide via the manufacturer’s website, limited retail sales, and corporate donations.
  • The recall does not affect other Prairie Wolf Spirits hand sanitizer products, and as of publishing, Prairie Wolf Spirits has not received any reports of adverse reactions related to this recall.
  • Prairie Wolf Spirits, Inc. is an Oklahoma-based craft spirit distillery that produces a range of spirits, including vodka and gin, that use similar branding to their line of hand sanitizer.
  •  We previously discussed a December 30, 2020 alert from FDA regarding recalls by Midwestern Pet Food, Inc. of nine total lots of Sportmix pet food products following reports of death and illness in dogs after consuming the products.  As discussed in an updated alert, the recall was expanded on January 11, 2021 to include all pet food products containing corn (more than 1000 lot codes of dog food and cat food) that were made in the firm’s Oklahoma plant and that expire on or before July 9, 2022.  As of FDA’s updated, January 26, 2021 alert, more than 110 pets have died and more than 210 pets are sick after have consumed certain pet food manufactured by Midwestern Pet Foods.  Another recent recall of dog food (September 2, 2020 by Sunshine Mills, Inc.) was triggered by a finding of elevated levels of aflatoxin in routine sampling of a single 4-pound bag of one lot of product but has not been associated with any deaths or illness.
  • On January 28, 2021, a group of consumers with dogs that died or became ill after consuming the now-recalled product from Midwestern Pet Foods have filed a proposed class action lawsuit (subscription to Law360 required) in the U.S. District Court for the Southern District of Indiana on behalf of a nationwide class and a California state class of buyers of Midwestern Pet Foods’ cat and dog foods.  The plaintiffs, who allege negligent misrepresentation, fraud, and unjust enrichment, seek restitution and over $5 million in damages to be determined in a jury trial.
  • It is yet to be seen how Midwestern Pet Foods will respond.  In earlier litigation following a pet food recall in 2005-2006 associated with aflatoxin contamination and involving a large number of deaths in dogs, it was reported that Diamond Pet Foods, Inc. agreed to pay $3.1 million dollars in a settlement with pet owners.
  • As previously reported on this blog, a multi-state listeriosis outbreak in 2015 linked to Blue Bell Creameries LP’s ice cream products contaminated with Listeria monocytogenes led to recalls, state regulatory enforcement actions (discussed here), civil litigation (including shareholder lawsuits), and criminal prosecution of the company and its former president. According to the Centers for Disease Control and Prevention, at least 10 people were sickened with listeriosis and hospitalized in Arizona, Kansas, Oklahoma, and Texas, and three people in Kansas died.
  • Pursuant to a plea agreement filed in federal court in Austin, Texas, in May 2020, the company pled guilty to two misdemeanor counts under the Federal Food, Drug, and Cosmetic Act of distributing adulterated ice cream products through interstate commerce. After conviction, Blue Bell was recently sentenced to pay $17.25 million in criminal penalties ($9.35 million in criminal fines and $7.9 million in forfeiture). According to the U.S. Department of Justice (DOJ), this represents the largest-ever criminal penalty following a conviction in a food safety case.
  • Blue Bell also agreed to pay an additional $2.1 million to resolve civil False Claims Act allegations regarding ice cream products manufactured under insanitary conditions and sold to federal facilities. According to DOJ, the combined total of $19.35 million in fine, forfeiture, and civil settlement payments constitutes the second largest-ever amount paid in resolution of a food-safety matter (the largest to date is a $25 million fine paid by Chipotle Mexican Grill Inc. in connection with a three-year deferred prosecution agreement to avoid conviction through implementation of an improved food safety program). According to the U.S. Department of Justice’s (DOJ) press release announcing the Blue Bell plea agreement, since reopening its facilities in late 2015, Blue Bell has taken significant steps to enhance sanitation processes and enact a program to test products for listeria prior to shipment.
  • In a related federal action in the same court, Blue Bell’s former president, Paul Kruse, was charged with seven felony counts (including attempt and conspiracy to commit mail fraud, wire fraud, and attempted wire fraud) for his alleged efforts to conceal from customers what the company knew about the listeria contamination. Among other allegations, Kruse allegedly directed Blue Bell employees to remove potentially contaminated products from store freezers without notifying retailers or consumers about the real reason, directed employees to tell customers who inquired that there was an unspecified issue with a manufacturing machine instead of informing them that samples of the products had tested positive for listeria, and directed employees to conceal and destroy evidence. In July 2020, the court dismissed the felony charges for lack of subject-matter jurisdiction, after Kruse successfully argued that while prosecutors had filed an information to charge him, they had failed to properly secure the required indictment or, in the alternative, a waiver of the right of indictment.

 

  • On May 14, 2020, the Hon. Ronald A. White, a federal judge in the United States District Court for the Eastern District of Oklahoma, issued a Temporary Restraining Order (“TRO”) against Xephyr LLC (doing business as N-Ergetics) and three associated individuals (Brad Brand, Derill J. Fussell, and Linda Fussell) (collectively, “Defendants”), ordering them to immediately cease labeling, holding, and/or distributing any drugs, including colloidal silver products.
  • The Defendants marketed their colloidal silver products online, claiming to cure, mitigate, treat, and prevent COVID-19, as well as other coronaviruses (such as SARS and MERS), and various other diseases such as cholera, diabetes, cancer, and AIDS. Colloidal silver is a liquid product marketed for oral use that contains microscopic suspended silver particles, and is not generally recognized as safe and effective by qualified experts for any of the Defendants’ promoted uses.
  • As previously reported in this blog, the U.S. Food and Drug Administration (FDA) and Federal Trade Commission (FTC) issued a joint warning letter to Defendants on March 6, 2020, challenging the marketing and distribution of Defendants’ colloidal silver products. The agencies were particularly concerned that products claiming to cure, mitigate, treat or prevent serious diseases like COVID-19 could cause consumers to delay or forego appropriate medical treatment, leading to serious and life-threatening harm. There are currently no vaccines or drugs approved by FDA to treat or prevent COVID-19, and in any event, none of the limited drugs currently granted Emergency Use Authorizations by FDA for the treatment of COVID-19 (e.g., remdesivir, hydroxychloroquine, etc.) contain colloidal silver.
  • The civil Complaint, filed by the U.S. Department of Justice (DOJ) at FDA’s request, alleges the products are unapproved new drugs; that the disease-related claims are not supported by adequate substantiation in the form of competent and reliable scientific evidence; and that the products lack adequate directions for use and are misbranded. The Complaint seeks to permanently restrain and enjoin the Defendants from labeling, holding, and distributing any unapproved and/or misbranded new drugs, such as colloidal silver, in interstate commerce. The TRO expires on June 4, 2020, and the court will hear argument on the government’s request to extend the injunction on May 21, 2020.

 

  • Missouri was the first among many states, including Arkansas, Louisiana, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, and Wyoming, to enact laws restricting plant-based and cell-cultured products from being labeled as “meat.”  As reported here, Turtle Island Foods (Tofurkey brand), in conjunction with non-profit advocacy groups, filed a lawsuit on August 28, 2018, which is the date Missouri’s law took effect, alleging First Amendment violations.  The plaintiffs requested a preliminary injunction on October 30, 2018.  Before a ruling was made on the injunction request, litigation was suspended for negotiations but then resumed in July 2019 after settlement discussions failed.
  • AP News reported on October 4, 2019 that U.S. District Judge Fernando Gaitan Jr. of the Western District of Missouri denied the request for a preliminary injunction because Tofurkey will not be affected by the law in question.  Specifically, as Missouri is not expected to prosecute where a non-meat product label using a defined “meat” term also bears a qualifier, such as “vegetarian,” “plant-based,” or “cell-based,” the Judge found there is no risk of prosecution for the plaintiff and no burden from having to change labels because the current labels disclose that Tofurkey products are plant-based.  A reported statement from Jessica Almy, an attorney in the case and the Director of Good Food Institute (GFI), a co-plaintiff, however, indicates that GFI has appealed the ruling.  In contrast, other plaintiffs in a similar situation will consider dropping a lawsuit in Mississippi upon adoption of a proposed regulation permitting “meat” terms in that state on labels that also use qualifiers.
  • In addition to plant-based products that are the subject of ongoing litigation in Missouri and other states, cell-based products derived from muscle tissue cultured in vitro from animal cells are also targeted by states’ meat labeling laws.  Cell-based products remain in the research and development phase and, thus, are not truly represented in the current litigation against state meat labeling laws.  It is likely, however, that yet-to-be developed federal labeling regulations will ultimately preempt the state laws.  In this regard, we have reported that five cell-based meat and seafood companies have formed a coalition to represent the industry’s interest amidst regulatory uncertainty.