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Grocery Manufacturers Association, Others Say 2009 FDA Guidance On Use Of the Term “Evaporated Cane Juice” Has Caused Chaos In Food Industry

By Stefanie Jill Fogel and Mary B. Langowski In 2009, the FDA told manufacturers not to use the term “evaporated cane juice” on the grounds that the term could be used to conceal the fact that a product contains added sugar. The Grocery Manufacturers Association and several industry...

FDA Issues Guidance on Submission of Petitions and Notifications for Exemption from Allergen Labeling

Last month the Food and Drug Administration (FDA) released draft guidance for industry with instructions on how to obtain a food allergen labeling exemption through submission of a petition or notification to FDA.[1] The Food Allergen Labeling and Consumer Protection Act of 2004 (FACLPA) amended the...

Vermont Adopts First US GMO Food Labelling Law

After failed attempts in several other states, and at the federal level, Vermont has adopted the United States’ first GMO food labelling law . The new law requires labelling of food with genetically modified ingredients, starting in 2016. It follows recent evidence that “Roundup Ready”...

Appeals Court Hears Arguments Anew On Country-Of-Origin Labeling

By Stefanie Jill Fogel and Mary B. Langowski On May 19, the US Court of Appeals for the DC Circuit, sitting en banc, heard arguments in a case brought by the meat industry challenging COOL as a violation of free speech under the First Amendment. In March, a panel of that court denied the meat industry’s...

Federal Food, Drug, And Cosmetic Act Did Not Preclude Lanham Act Challenge That Asserted That Labeling, Marketing, And Advertising Was Misleading

On June 12, 2014, the United States Supreme Court decided the case of POM Wonderful LLC v. Coca-Cola Co., 189 L. Ed. 2d 141 (U.S. 2014) . POM Wonderful, LLC (POM) filed its initial action against Coca-Cola asserting that the labeling, marketing, and advertising for one of Coca-Cola’s juice blends...

"Battle of the Experts" Not Sufficient to Establish Violation of State Consumer Protection Acts

In the increasingly litigious area of food labeling claims, manufacturers received a little help in a recent decision from a federal judge in Maryland, [ enhanced version available to lexis.com subscribers ]. Reviewing a consumer’s assertion that the claimed benefit for a dietary supplement had...

Public Meeting on Proposed Rules to Change Nutrition Facts Label and Serving Sizes

The Food and Drug Administration (FDA) held a public meeting on June 26, 2014 to discuss the proposed rules to revise the Nutrition Facts label and serving sizes.[1] The meeting featured an overview of the proposed rules by FDA, a panel on stakeholder perspectives with representatives from trade associations...

Class Certification Is Denied In Baby Food Mislabeling Case

By Stefanie Jill Fogel , Mary B. Langowski , and Tiffani V. Williams On June 23, a California federal judge declined to certify a class action lawsuit, [ enhanced version available to lexis.com subscribers ], accusing Gerber Products Co. of mislabeling its baby food. The court found that it would...

GMO Crops May Be Grounded In Oregon, While GMO Labeling May Be Stripped Off In Vermont

By: Stefanie Jill Fogel , Mary B. Langowski , and Tiffani V. Williams Congressman expects state measure against GMO crops will pass. Representative Peter DeFazio (D-OR) has predicted that Oregon will approve a statewide ban on the cultivation of GMO crops. The measure has been officially placed on...

Norton Rose Fulbright: Certification of Damages Class Denied in ‘All Natural Fruit’ False Labeling Suit

By Joshua Lichtman Updating our previous post , another federal district court has interpreted Comcast Corp. v. Behrend [ an enhanced version of this opinion is available to lexis.com subscribers ] to require plaintiffs to demonstrate a viable “means of showing damages on a classwide basis through...

Vermont Attorney General's Office Releases Draft Regulations to Implement Genetically Engineered Food Labeling Law

Vermont’s Office of the Attorney General has published draft regulations intended to implement the already enacted Vermont Genetically Engineered (GE) food labeling law. Vermont’s GE Labeling Law Vermont’s Act 120, [ enhanced version available to lexis.com subscribers ], the measure...

"Made in USA" Jeans Case

A federal court recently ruled that the Federal Trade Commission Act and the Textile Fiber Products Identification Act (TFPIA) do not preempt the California law that prohibits the use of the “Made in U.S.A.” label if any part of a product has been entirely or substantially made outside of...

Food Court Report: Judge Fails to Find Ascertainable Class Members, Predominance, or Adequate Representation in Labeling Suit against Skinnygirl Cocktails, LLC

United States Judge, Manish S. Shah, refused to certify a putative class in a labeling suit finding that the class members could not be easily identified, that the class representative was inadequate; and that common issues to class members did not predominate over individual members. The case is Langendorf...

FDA Opens Plan to Let Generic Drug Manufacturers Update Labels to Debate

In response to the U.S. Supreme Court's holding in Pliva v. Mensing , 131 S. Ct. 2567 (2011), [ enhanced version available to lexis.com subscribers ], that federal laws and regulations preempted state failure-to-warn claims, the U.S. Food and Drug Administration (FDA) in 2013 proposed to allow generic...

Purina and Jim Beam Hit By Lawsuits In California Federal Courts

Nestle Purina hit by lawsuit over allegedly poisonous dog food. A lawsuit filed February 5 in the US District Court for the Northern District of California contends Nestle Purina PetCare’s Beneful dry dog food has “resulted in serious illness and death of thousands of dogs.” Bill Salzman...

‘Made in the USA’ Claims: California Adds Complications to FTC Standards

Under current Federal Trade Commission (FTC) guidelines, a product may be advertised as “Made in the USA” if “all or virtually all” of the labor and materials in the product are domestic. While this standard is relatively strict, it allows a bit of flexibility in at least two...

Plaintiffs Challenging Food Labels May Be Required to Conduct Expensive Consumer Perception Surveys to Demonstrate Deception

A federal judge in California recently made it more difficult for plaintiffs to demonstrate that food labels are misleading. The judge's ruling points to the need for consumer perception surveys to demonstrate that consumers were misled by allegedly false food labels. Consumer perception surveys...

How You Say It Makes a Difference - California False Advertising Claims Attacking "No Trans Fat" Labeling Gain Traction as Ninth Circuit Rejects Preemption Arguments

The United States Court of Appeals for the Ninth Circuit held, in relevant part, that a consumer states a valid claim for false advertising when a company claims "No Trans Fats" for a product which has less than 0.5 grams of trans fats per serving (but more than 0 grams) even though Food and...

Green Chemistry – The State of the States

By Sheila A. Millar and Nathan A. Cardon From one corner of the country to the other – literally, from California to Maine – industry is facing a growing number of green chemistry initiatives, each giving states varying degrees of authority to regulate “chemicals of concern”...

California Federal Judge Rejects Apparel Company's Motion to Dismiss "Made in America" Suit Under California Law

A California federal court this month ruled against defendants’ attempt to rely on a federal law requiring U.S.-origin claims on textile fabric products to displace a state statute with more stringent requirements. The ruling allows a class action suit to proceed, lowering the hopes of retailers...

Food Court Report: Consumers Can Challenge Certified Organic Products They Believe Contain Improper Ingredients

In Segedie v. The Hain Celestial Group, Inc. , [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], a trial court in the Southern District of New York held that plaintiffs had properly stated a claim of consumer fraud based on alleged misuse of the term “organic...