• A plaintiff has filed two class actions targeting a dietary supplement promoted as increasing GLP-1. One case is in federal court in New York, while the other is in California state court. Both cases allege false advertising. According to the complaints, Lemme, a brand co-founded by Kourtney Kardashian Barker, offers a product, Lemme GLP-1 Daily, which contains orange extract, saffron extract, and a clinically tested lemon extract.
  • Among other advertising, the complaints point to a product webpage with the headline, “How GLP-1 your ‘un-hunger’ hormone works.” The explanation that follows notes, “GLP-1 helps you feel full and supports glucose metabolism. But factors like age, lifestyle, and diet can affect your body’s ability to produce GLP-1. That’s where we come in.” The complaints also identify social media posts with claims such as, “[T]his will increase your body’s natural GLP-1 level (promotes fat loss + reduces hunger).”
  • The complaints concede that clinical studies exist on the lemon extract in Lemme GLP-1, but the complaints argue that the studies “rely on sample sizes that are far too small to derive valid statistical conclusions.” Also, according to the complaints, even if the studies were valid, after four months, results showed only a “17 percent” increase in GLP-1 and “failed to show any decrease in body weight, body-mass index (BMI), or waist/hip ratio.” The “number of calories consumed did not change” either.
  • The complaints further allege “GLP-1 concentration in the blood increases by approximately 400% to 900% after eating”; thus, it “is unsurprising” that a “mere 17% increase in GLP-1 would have no discernible effect on caloric consumption, BMI, or weight loss.” The complaints also contend that a “1 mg weekly dose of Ozempic or Wegovy results in a concentration of synthetic GLP-1” that is “300,000% to 600,000% greater” than typical concentrations, with a “half-life of 7 days instead of 2 minutes.”
  • Keller and Heckman will continue to monitor activity on advertising around GLP-1.
  • On March 12, the Texas Senate unanimously passed SB 25. While the bill, as currently drafted, does not ban the use of any food additives, it would require food manufacturers to label products that contain certain artificial colors or chemicals, such as titanium dioxide and red 40. Products containing any of the fifty listed substances would have to be labeled with the following text: “WARNING: This product contains an artificial color, chemical, or food additive that is banned in Australia, Canada, the European Union, or the United Kingdom.” If this bill becomes law as currently drafted, this requirement would take effect on September 1, 2025.
  • SB 25 would also establish a Nutrition Advisory Committee for the state, which would “examine the impact of nutrition on human health and examine the connection between ultra-processed foods, including foods containing artificial color and food additives, and the prevalence of chronic diseases and other chronic health issues.” Additionally, the Committee would “develop and maintain dietary and nutritional guidelines” for the State.
  • On March 12, the Texas Senate also passed SB 314, which would prohibit the use of the following food additives in free or reduced-price meals served in Texas public schools: (1) brominated vegetable oil (BVO); (2) potassium bromate; (3) propylparaben;(4)azodicarbonamide; (5) butylated hydroxyanisole (BHA); (6) red 3; (7) red 40; (8) yellow 5; (9) yellow 6; (10) blue 1; (11) blue 2; (12) green 3; (13) caramel; (14) titanium dioxide. If this bill becomes law as currently drafted, the ban would go into effect beginning with the 2026-2027 school year.
  • The Texas House Committee on Public Health is currently considering SB 25 and SB 314. Keller and Heckman will continue to monitor the activity in Texas and report on state bills that impact the food industry.
  • Yesterday the U.S. District Court for the Northern District of California granted summary judgment to FDA and drug manufacturer Elanco Animal Health, thereby rejecting a challenge to FDA’s approval of Experior, a drug intended to reduce ammonia production in feedlot cattle. See 20-cv-03703-RS (Law360 subscription required).
  • Plaintiffs (three advocacy groups) had challenged the approval and argued that FDA failed to comply with the Federal Food, Drug, and Cosmetic Act (FD&C Act) and the National Environmental Policy Act (NEPA) in approving the drug.
  • Specifically, in regard to drug efficacy, the Court held that FDA had properly found that there was substantial evidence supporting approval of Experior for the “reduction of ammonia gas emissions per pound of live weight and hot carcass weight in beef steers and heifers fed in confinement for slaughter during the last 14 to 91 days on feed.”  The conclusion was based on 5 well-controlled studies consisting of a total of 536 animals and the Court held that it was irrelevant that the mechanism of action was not well established and that FDA did not require proof of any particular environmental results.
  • In regard to the safety of the new animal drug, the Court held that FDA appropriately evaluated human food safety, user safety, and target animal safety and that Plaintiffs’ arguments would require the Court to inappropriately second-guess FDA’s judgment.
  • Finally, with regard to NEPA, the Court held that FDA’s Finding of No Significant [Environmental] Impact (FONSI) was a reasoned decision that was not inconsistent with the approval of an ammonia reducing drug.
  • A district court judge has granted (Law360 subscription required) Trader Joe’s motion for summary judgment in a class action lawsuit alleging that the company’s dark chocolate bars contain the heavy metals lead, cadmium, and arsenic. In granting summary judgment, the court found that Trader Joe’s “did not have exclusive knowledge that the dark chocolate bars contained or had a material risk of containing heavy metals,” which is a requirement under the applicable state consumer protection laws.
  • In January 2023, Trader Joe’s was hit with 10 class action complaints claiming the company failed to disclose the presence of heavy metals in dark chocolate products. The complaints were consolidated in April 2023, and claims for violations of consumer protection laws in Washington, Illinois, and New York survived a motion to dismiss. Each of the claims under these state laws requires exclusive knowledge of omitted information and excludes claims if that omitted information was reasonably obtainable or easily discoverable by consumers.
  • Trader Joe’s presented articles from as early as 2002 reporting the presence of heavy metals in chocolate products. The judge rejected arguments that the information was not reasonably obtainable because the plaintiffs were not aware that the products contained heavy metals, stating that “[w]hether information on the presence of heavy metals in the products was reasonably obtainable (or easily discoverable) does not depend on what individual plaintiffs were or were not aware of . . . [but] turns on what information was reasonably obtainable or easily discoverable by consumers about the presence of heavy metals in dark chocolate.”
  • The judge did note, however, that if the plaintiffs had alleged that Trader Joe’s failed to disclose a specific amount of heavy metals, high levels of heavy metals, or that the levels exceeded some kind of regulatory threshold, then the information might not be reasonably obtained by consumers.
  • The presence of heavy metals in chocolate has been the subject of studies and lawsuits in recent years, as we have previously blogged. Keller and Heckman will continue to monitor activity related to heavy metals in chocolate and other foods.
  • On March 18, 2025, FDA announced that, at the direction of Health and Human Services Secretary Robert F. Kennedy Jr., it is “taking steps to enhance its efforts to ensure the ongoing quality, safety and nutritional adequacy” of infant formula products as part of a broader review of the U.S. food supply, in what is being referred to as “Operation Stork Speed.”  
  • Key measures include:
    • Nutrient Review: FDA will soon issue a Request for Information to begin a comprehensive review of infant formula nutrients.
    • Increased Testing: There will be increased testing for heavy metals and other contaminants in infant formula and other foods consumed by children.
    • Encouraging Innovation: FDA is urging companies to develop new infant formulas and improve transparency in labeling to better inform consumers and will collaborate with the National Institutes of Health on researching the long-term health outcomes associated with formula feeding of infants.
  • The announcement comes as part of a broader effort to stabilize the supply of infant formula following severe shortages in 2022.  FDA has since implemented a national strategy to increase the resilience of the U.S. infant formula market, including measures to prevent future shortages and improve the integrity of the supply chain.  Operation Stork Speed builds on these efforts, aiming to ensure that families have access to safe and nutritious formula for their infants.
  • Keller and Heckman will continue to monitor developments related to the regulation of infant formula.
  • On March 20, 2025, the Food and Drug Administration (FDA) announced the availability of a Chemical Contaminants Transparency Tool, a database intended to provide users with a list of contaminant levels in the food supply.
  • Contaminant levels, such as tolerances, action levels, and guidance levels, are used by FDA to evaluate potential health risks in food.  If contaminant levels exceed the permissible threshold, FDA will deem the food to be unsafe.
  • The database compiles existing information from several sources, including compliance policy guides, guidance for industry, and the Code of Federal Regulations, into a single reference.  Information includes the contaminant’s name, commodity, contaminant level type, level value, and its reference source.  There are currently 301 records available on the database.
  • According to the news release, under the direction of Secretary Kennedy, the Chemical Contaminants Transparency Tool is one new initiative intended to modernize chemical safety.  The intention behind the database is to offer the American public “informed consent about what they are eating.”
  • Earlier this year lawmakers in Nebraska proposed a bill (LB170) which would end the state’s sales tax exemption for soda and candy. Currently, all food and beverages except prepared foods and vending machine items are exempt from the sales tax.
  • The proposed bill defines candy as a “preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruits, nuts, or other ingredients or flavorings in the form of bars, drops, or pieces” but excludes “any preparation that contains flour or that requires refrigeration” to avoid discouraging consumption of healthier snacks like granola and protein bars. (See Deep Dive: Nebraska Legislature committee to discuss ‘Sugar Tax’). Soft drinks are defined as “nonalcoholic beverages that contain natural or artificial sweeteners” but excludes “beverages that contain milk or milk products, soy, rice, or similar milk substitutes or that contain greater than fifty percent of vegetable or fruit juice by volume.”
  • The bill is intended to reduce the state’s budget deficit.  It is opposed by affected industry including the Nebraska Beverage Association.

  • Illinois is moving forward with the Illinois Food Safety Act to ban brominated vegetable oil (BVO), potassium bromate, propylparaben, and Red No. 3, despite FDA’s BVO ban that went into effect in July 2024 with a one-year compliance period. We previously blogged about Illinois’ bill and the FDA revocation of BVO.
  • According to Illinois Secretary of State Alexi Giannoulias, FDA’s ban left enforcement gaps, including lingering sales of BVO-containing products. The Illinois bill would ensure that “families aren’t stuck with unsafe leftovers while the feds catch up.” The Illinois ban is intended to enforce the BVO ban at the retail level and “tackle additional chemicals, potentially setting a precedent for stricter state oversight.”
  • Illinois is not the only state pushing for stricter food additive bans. California banned four additives in 2023, and other states including New York and New Jersey have proposed similar laws. According to the Environmental Working Group, states are “tired of waiting” for FDA to review additives and are “forcing the FDA’s hand.” However, states could face lawsuits claiming federal preemption for the banned chemicals.
  • Keller and Heckman will continue to monitor and report on state and FDA review of food additives.
  • On March 20, 2025, the U.S. Food and Drug Administration (FDA) announced its intention to extend the compliance date for the Food Traceability Rule by 30 months.  This extension aims to provide the food industry with additional time to fully implement the rule’s requirements.
  • The Food Traceability Rule, established under the FDA Food Safety Modernization Act (FMSA), mandates enhanced traceability recordkeeping for entities that manufacture, process, pack, or hold foods listed on the Food Traceability List (FTL) for the purpose of promptly identifying and removing potentially contaminated food from the market.    
  • Notably, in its announcement, FDA made clear that the substance of the rule remains intact, and the only modification is extending the compliance deadline.  The agency will continue to work with stakeholders to provide additional assistance and resources to address challenges with implementation.
  • Keller and Heckman will continue to monitor developments related to the FSMA and the Food Traceability rule.
  • On March 19, 2025, the West Virginia Senate and House sent HB 2354 to the governor for final approval, which proposes banning various food additives and synthetic dyes.
  • The bill would prohibit the sale of any food product in the state that contains butylated hydroxyanisole (BHA), propylparaben, Red No. 3, Red No. 40, Yellow No. 5, Yellow No. 6, Blue No. 1, Blue No. 2, or Green No. 3.  If enacted, the legislation would apply to food products in school nutrition programs beginning August 1, 2025, then extend to all food products in the state on January 1, 2028.
  • While there was some push back arguing that the state should wait for changes to come top down from the U.S. Food and Drug Administration (FDA) and that the ban will cause food prices to go up or limit the competitiveness of the state, the voting pattern shows that the opposition was minimal.  This article by West Virginia Watch stated that Senator Barrett, who spearheaded the effort, feels confident that the Governor will sign HB 2354.
  • The West Virginia bill is the latest state legislative effort to regulate food dyes, following California, Utah, Florida, and Virginia.