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U.S. Court of Appeals for the Seventh Circuit Finds that Plaintiffs Did Not Suffer a Concrete Harm When They Purchased Allegedly Underfilled Boxes of Chocolate (subscription to Law360 required)

On December 9, 2019, the Seventh Circuit found that an Illinois federal district court properly tossed a proposed slack-fill class action against Fannie May, a Chicago-based chocolate maker.    In 2018, Plaintiffs claimed that they relied on the size of the packaging to gauge the amount of product inside and would have paid less for the … Continue Reading

Court Affirms Slack Fill Dismissal Because Plaintiffs Failed to Allege Actual Damage (subscription to Law360 required)

The Seventh Circuit affirmed an Illinois federal court’s decision to dismiss a proposed slack-fill class action against Chicago-based chocolate maker, Fannie May. In December 2018, the district court ruled that the plaintiffs, Clarisha Benson and Lorenzo Smith, failed to adequately plead a violation of the Federal Food, Drug, and Cosmetic Act. And on December 9, … Continue Reading

FDA Provides States Flexibility to Start Routine Inspections on Small Farms As Early As January 1

As previously reported, both states’ departments of agriculture and FDA have begun visits to produce farms to conduct inspections for compliance with the Produce Safety Rule. The FSMA final Produce Safety Rule was published on November 27, 2015 (80 FR 74353) and establishes science-based minimum standards for the safe growing, harvesting, packing, and holding of … Continue Reading

NY Judge Denies Class Certification in ‘No Artificial Flavors’ Lawsuit

Chef Denied Class Cert. In Pringles Artificial Flavoring Row (subscription to Law360 required) In the past five years or so consumers have shown increased concern about perceived health issues with so-called “artificial” ingredients.  Whether or not ingredients are “artificial” is, therefore, a hotly debated issue at the center of many false advertising lawsuits. On December … Continue Reading

USDA Finalizes Rule For SNAP Requirements for Able-Bodied Adults Without Dependents

In the last two years, the Supplemental Nutrition Assistance Program (SNAP; colloquially known as the “Food Stamps” Program) has been a major point of contention within political circles.  For example, the additional SNAP requirements proposed in the 2018 Farm Bill threatened to derail its passage and the United States Department of Agriculture’s (USDA’s) proposal to … Continue Reading

Proposed Class Action Alleges Company’s CBD Products Violate Federal Law (subscription to Law360 required)

As our readers may recall, on November 25, FDA issued warning letters to 15 companies for illegally selling FDA-regulated products containing cannabidiol (CBD) in violation of the Federal Food, Drug, and Cosmetic Act (FD&C Act). FDA alleged that CBD lacks an appropriate regulatory status in the products and, in some cases along with product claims, … Continue Reading

Farmers Can Now Apply for Federal USDA Hemp Production Licenses

In addition to establishing requirements for State and Tribal hemp production plans, USDA’s U.S. Domestic Hemp Production Program establishes a federal plan to regulate hemp production by producers in areas where hemp production is legal but not covered by an approved State or Tribal Plan. USDA maintains a list of the status of State and … Continue Reading

11th Circuit Rules for Plaintiffs in Class Action Lawsuit Based on Economic Loss From Purchase of ‘Worthless’ Supplements Containing DMBA – an Impermissible NDI

  We previously reported on a flurry of FDA enforcement actions in 2015 based on adulteration per se, which followed years of relative inaction in the dietary supplement marketing arena outside of enforcement against products with specific health or safety concerns.  FDA’s enforcement actions included warning letters to 14 companies regarding the marketing of products … Continue Reading

Senator Gillibrand Announces Bill to Expand FDA’s Investigative Authorities

As our readers know, this blog has previously covered the romaine lettuce E. coli outbreaks that occurred in the spring and fall of 2018. Ultimately, FDA determined that the outbreak that occurred in the spring of 2018 may have been caused by Concentrated Animal Feeding Operations (CAFOs) in the Yuma, Arizona area, and the outbreak that … Continue Reading

CBD Update: FDA Takes More Aggressive Enforcement Action in Warning Letters to Companies

On November 25, 2019, FDA issued warning letters to 15 companies for illegally selling products containing cannabidiol (CBD) in ways that violate the Federal Food, Drug, and Cosmetic Act (FD&C Act). The products cited in the warning letters cover a wide range of forms including oils, drops, dietary supplements, conventional food (including gummies, peanut butter, … Continue Reading

Proposed Class Action Lawsuit Alleges ‘Simply Cocoa’ and ‘Made With Real Cocoa’ are False and Deceptive Claims for Hot Chocolate That Contains Alkalized Cocoa

 Swiss Miss Hot Cocoa Ingredients Not So ‘Simple,’ Buyers Say (subscription to Law360 required) In a proposed statewide class of consumers who purchased Swiss Miss hot chocolate and similar products, an individual has sued ConAgra under various California consumer protection laws.  The plaintiff alleges that he made an on-line purchase of Swiss Miss Simply Cocoa … Continue Reading

FDA Works to Find Source of Multi-State Outbreak of E. coli Infections

On November 20, the Centers for Disease Control and Prevention (CDC), in conjunction with the Food and Drug Administration (FDA) and several state agencies, announced that it is currently investigating an outbreak of Shiga toxin-producing E. coli (STEC) O157:H7 infections that has so far impacted at least 17 people across 8 states. The first reported … Continue Reading

Former FDA Commissioner Scott Gottlieb Calls for a Ban on Vaping Products Most Widely Used by Youth

On November 19, 2019, former FDA Commissioner Scott Gottlieb opined on how the FDA should proceed in regulating e-cigs to address the “youth epidemic” but also preserve the devices’ potential to help adult smokers quit cigarettes.  Gottlieb argues that “providing adult smokers with a safer alternative to cigarettes cannot come at the expense of addicting … Continue Reading

FDA Issues 2019 Voluntary Retail Food Regulatory Program Standards

FDA issued the 2019 edition of the Voluntary National Retail Food Regulatory Program Standards (“Retail Program Standards”) on November 14.  The Retail Program Standards define the key elements of an effective retail food regulatory program for state, local, tribal, and territorial food regulatory jurisdictions. The Retail Program Standards also provide recommendations for designing and managing … Continue Reading

Trade Group Petitions FDA to Allow CBD Supplements

In the wake of rapidly increasing sales, FDA has continued to maintain that dietary supplements containing hemp-derived cannabidiol (CBD) are illegal under the Federal Food, Drug & Cosmetic Act. FDA officials have previously stated that the agency is exploring additional regulatory pathways available to hemp products containing CBD, but predicted that completing a potential rulemaking … Continue Reading

New Proposed Class Action Over “Organic Dehydrated Cane Juice Solids”

 Whole Foods Accused of Hiding Sugar In Oatmeal Ingredients (subscription to Law360 required) As previously covered on this blog, a claim against Whole Foods involving the term “evaporated cane juice” (ECJ) was dismissed from the “Food Court” (i.e., the Northern District of California) in 2015 because inconsistencies in the plaintiff’s statements and actions make it … Continue Reading

Ben & Jerry’s Sued Over “Happy Cows” Claim (subscription to Law360 required)

On October 29, 2019, Plaintiff James Ehlers, a former Vermont gubernatorial candidate, filed a proposed class action complaint in the federal U.S. District Court in Vermont.  In the complaint, the Plaintiff alleges that Ben & Jerry’s and its parent company, Unilever, (collectively “Defendants”) falsely advertised that the milk and cream in Ben & Jerry’s ice … Continue Reading

Plant-Based Plaintiffs Drop Mississippi Lawsuit After Favorable Resolution, but US House Reps Introduce Real MEAT Act

On November 7, the Plant Based Foods Association (PBFA) and Upton’s Naturals dropped their federal lawsuit challenging Mississippi’s legislation that banned plant-based foods sold in Mississippi from using meat-related terms on labels, after Mississippi proposed new regulations. As our readers may recall, in early September, the Mississippi Department of Agriculture and Commerce proposed new regulations … Continue Reading

Ocean Spray Agrees to Settle ‘No Artificial Flavors’ Suit (subscription to Law360 required)

A consumer class action lawsuit, first filed in California state court on September 19, 2017 alleged that Ocean Spray Cranberries Inc.’s “CranGrape” and “CranApple” beverages were false and misleading under California and federal law. Specifically, the complaint alleged that the “CranApple” drink includes DL-malic acid derived from petrochemicals to achieve its apple flavor while the … Continue Reading

FDA Will Extend Enforcement Policy Allowing Some “Co-Manufacturers” Additional Time to Implement Certain FSMA Supply-Chain Program Requirements

  We reported on the Food and Drug Administration’s (FDA) November 2017 guidance giving certain co-manufacturers two more years to comply with requirements for a supply-chain program for certain raw materials and other ingredients under the FDA Food Safety Modernization Act (FSMA) – Preventive Controls for Human Foods, Preventive Controls for Animal Food, and the … Continue Reading

FTC Publishes New Guidance for Social Media Influencers: “Disclosures 101”

While the Food and Drug Administration (FDA) is the primary regulatory authority for food, dietary supplements, cosmetics, tobacco products, and other related products, the Federal Trade Commission (FTC) regulates advertising and promotion of these products.  The FTC is charged with ensuring that all material claims are truthful and non-misleading, and are supported by competent and … Continue Reading

American Academy of Pediatrics Raises Concerns Re Nonnutritive Sweeteners, Calls for Research and Labeling

On October 28, 2019, the American Academy of Pediatrics (AAP) published a policy statement, in which it questions the effects of nonnutritive sweeteners (NNSs) on children’s health.  AAP notes that the Food and Drug Administration (FDA) currently requires manufacturers to list NNSs in a product’s ingredient statement but recommends also requiring producers to specify the … Continue Reading

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