Currently browsing posts about: Lawsuits

I am not a litigious person and much prefer to stay out of the legal system.

But I am a big fan of Bill Marler, who represents victims of food poisonings, not least because his lawsuits against companies with sloppy food safety procedures should encourage them to clean up their processes.

I’m not sure what to think of NPR’s account of Spencer Sheehan’s 400 or so lawsuits against food companies for misleading labeling.

The one that triggered off the article is on behalf of a woman suing Kellogg over the number of strawberries in Strawberry Pop-Tarts.

Enriched flour (wheat flour, niacin, reduced iron, vitamin B1 [thiamin mononitrate], vitamin B2 [riboflavin], folic acid), corn syrup, high fructose corn syrup, dextrose, soybean and palm oil (with TBHQ for freshness), sugar, bleached wheat flour. Contains 2% or less of wheat starch, salt, dried strawberries, dried pears, dried apples, leavening (baking soda, sodium acid pyrophosphate, monocalcium phosphate), citric acid, gelatin, modified wheat starch, yellow corn flour, caramel color, xanthan gum, cornstarch, turmeric extract color, soy lecithin, red 40, yellow 6, blue 1, color added.

Some of his other cases:

Keebler and Betty Crocker and others over “fudge” cookies and baking mixes that contained no milkfat.

Frito-Lay alleging it didn’t use enough real lime juice in its “hint of lime” Tostitos.

Coors suggesting its pineapple-and-mango-flavored Vizzy Hard Seltzers are sources of Vitamin C “nutritionally-equivalent” to actual pineapples and mangos.

Snack Pack pudding — advertised as “made with real milk” — actually made with fat-free skim milk.

Many cases targeting vanilla products — soda, soy milk, yogurt, ice cream — that use synthetic vanilla or other flavors alongside or in place of the more expensive natural vanilla.

NPR says

Most of Sheehan’s suits, including the strawberry Pop-Tart cases, allege damages based on the so-called “price premium theory,” which says that products are sold at higher prices than they would have otherwise commanded had the companies marketed them honestly.

Are these cases frivolous or in the public interest?

I’m for anything that gets the makers of ultra-processed foods to advertise them for what they are, not for what they aspire to be.

Hat tip to Lisa Young for sending this one.

Food law used to be so boring that hardly any law schools taught anything about it.  Now it’s a hot topic.  To understand why, take a look at FoodNavigator-USA’s collection of articles, titled Food in the dock: Food & beverage litigation 

• Judge says lawsuit taking issue with added sugar levels in Clif Bar can proceed:  A court has rejected Clif Bar’s motion to dismiss a lawsuit* accusing it of duping consumers by presenting bars that are “loaded with sugar” as wholesome and nutritious – allegations the company describes as “absurd” and “implausible.”.. Read  
• General Mills prevails in false ad lawsuit over sugar content in cereals… after three-year battle:  <General Mills has finally prevailed in a false advertising lawsuit* over sugar levels in its cereals after three years of legal wrangling, with the judge concluding that the plaintiffs “cannot plausibly claim to be misled.”..
• Who is behind THC-infused STONEY PATCH gummies? Mondelēz Canada secures court order to find out: A California court has granted a request from Mondelēz Canada to compel Facebook and Google to release information associated with Instagram and Gmail accounts of a company selling THC-infused gummies under the STONEY PATCH brand… Read
• Tillamook presents deceptive image of milk sourcing strategy, alleges lawsuit; Tillamook ‘adamantly disagrees’:  Tillamook presents a bucolic image of a dairy brand sourcing milk from cows grazing on local small farms, when in fact most of its milk comes from industrial scale factory farms, alleges a lawsuit accusing the firm of deceptive practices… Read
• LaCroix: Natural flavors lawsuit is a ‘classic fishing expedition’:  The legal dispute over the ‘natural’ credentials of LaCroix sparkling beverages is heating up with brand owner National Beverage Corp urging a court in Illinois to enter a protective order shielding it from discovery that it claims would compel it to release trade secrets… Read
• Plant-based ‘meat’ battle heats up in Arkansas as Tofurky challenges ‘unconstitutional’ law: A law (Act 501) coming into force in Arkansas on July 24 puts plant-based brands between a rock and a hard place by restricting the use of ‘meaty’ terms to products derived from slaughtered animals, alleges a new lawsuit filed by Turtle Island Foods (d.b.a. Tofurky)… Read
• PBFA and Upton’s Naturals challenge Mississippi law restricting plant-based and cell-cultured ‘meat’ labeling:  The Plant Based Foods Association (PBFA) and member company Upton’s Naturals have filed a lawsuit in Mississippi challenging a new labeling law that could make using ‘meaty’ terms to describe plant-based and cell-cultured meat subject to criminal penalties… Read
• Fairlife fallout… attorneys weigh in as the lawsuits pile up:  Four class action lawsuits have already been filed against high-protein milk brand fairlife, its founders, and JV partner Coca-Cola over alleged animal abuse at its flagship dairy farm in Indiana, but this could be just the beginning of the company’s legal problems, predict experts… Read

FoodNavigator-USA has collected its recent articles on food industry lawsuits.  As it puts it,

There have been hundreds of class action lawsuits directed against food and beverage companies in the past five years, spanning everything from added sugar, ‘natural’ and ‘healthy’ claims, to glyphosate residues, and alkaline water claims. We take a look at some high profile cases, some emerging hot topics from Non GMO claims to a new wave of kombucha lawsuits, and what’s coming up from the FDA, from plant-based ‘milk’ labeling guidance to a fresh look at ‘healthy’ and ‘natural’ labeling.

I’ve organized these into categories.

GMOs

• And now the food lawsuits… General Mills sued over glyphosate residue post Monsanto $289m verdict: Monsanto has just been ordered to pay $289m in damages to a man who alleged its glyphosate-based herbicide caused his cancer (a ruling it is appealing). But what, if anything, does this verdict mean for food companies manufacturing products containing trace levels of glyphosate?.. Read
• Nestlé USA lawsuit highlights confusion over Non-GMO claims, say attorneys: A lawsuit alleging that Nestlé USA is misleading shoppers with its ‘No GMO Ingredients’ seal is unlikely to make much progress, predict legal experts, but it does highlight the confusion surrounding Non-GMO claims given that the standards underpinning them can differ from one product to another… Read
• The Non-GMO Project may emerge as the big winner from federal GMO labeling legislation: The Non-GMO Project will “only become more relevant” as mandatory GMO labeling kicks in, in part because its scope could be so narrow that consumers will not simply be able to assume that anything without a bioengineered label is automatically Non-GMO, says executive director Megan Westgate… Read

Warnings about chemicals in foods

• ‘Significant increase’ in Prop 65 notices over lead, acrylamide, and cadmium in 2017/18, says Perkins Coie: There has been a significant increase in food and beverage Prop 65 actions in the past five years, with particularly strong growth in notices relating to lead, acrylamide and cadmium, according to new data compiled by attorneys at Perkins Coie… Read
• Amended Prop 65 regulations likely to prompt a significant uptick in litigation, predict attorneys: Amendments to Prop 65 – which requires firms selling products in California to provide warnings if their products expose consumers to 900+ chemicals linked to cancer or reproductive toxicity – will likely trigger a sharp rise in litigation as manufacturers struggle to get to grips with the new rules, predict attorneys… Read

Compliance with labeling and health claims requirements

• RXBAR sued over minimalist labels, ingredients declaration; but case is a stretch, say legal experts: ‘We tell you what’s on the inside on the outside’ protein bar brand RXBAR has been hit with a proposed class action lawsuit* by the same law firms challenging the minimalist ingredients declarations of fellow bar brand That’s It.**.. Read
• Halo Top routinely under-fills its pints, alleges lawsuit, ‘dramatically so, at times…’: A month after being hit with a lawsuit alleging it made false and misleading representations about its light ice cream, Halo Top has been targeted again, this time with a proposed class action alleging it routinely under-fills its pints, “and has been doing this for years.”.. Read
• ‘No reliable scientific evidence’ supports Trader Joe’s alkaline water claims, alleges lawsuit: “There is no greater benefit to ingesting Trader Joe’s alkaline water than ingesting an equivalent bottled water or tap water,” argues a lawsuit alleging Trader Joe’s is duping shoppers into paying over the odds for the water, although legal experts predict that proving Trader Joe’s is making false implied health benefit claims will be “close to impossible.”.. Read
• Plant-based ‘milk’ row heats up as FDA commissioner says ‘public health concerns’ inform the agency’s renewed interest in dairy standards of identity: The war of words over labeling conventions for plant-based ‘milk’ intensified this week as FDA commissioner Dr Scott Gottlieb indicated that a “a new compliance policy” may be on the cards as the agency hosted a public meeting on its nutrition innovation strategy… Read
• Do consumers expect kombucha to contain live organisms? Court gives green light to lawsuit: Do consumers expect products labeled as ‘kombucha’ to contain live organisms, even if they don’t make any claims to this effect? Maybe, according to a court filing in a case that could have broader ramifications for the burgeoning category going forward, say attorneys… Read
• How much sugar do consumers expect in a ‘lightly sweetened’ cereal? Judge certifies classes in Kellogg added sugar case:  If up to 40% of the calories in breakfast cereals are from added sugar, and brands describe them as ‘lightly sweetened,’ are they misleading shoppers? Perhaps, says a federal judge who has just certified three classes of consumers in a false advertising lawsuit vs Kellogg, which is now heading into mediation… Read
• Tofurky CEO: It’s not the role of lawmakers to choose winners or losers in any given industry: As long as protein products are safe and shoppers are not being misled, it’s not the role of lawmakers to write new labeling laws favoring one production method over another, says the CEO of plant-based meat brand Tofurky, which is challenging a Missouri law* limiting the term ‘meat’ to slaughtered livestock or poultry… Read
• Clif Bar fires back at ‘absurd’ lawsuit: Consumers expect energy bars to contain sugar: Clif Bar has hit back at allegations made in a recent lawsuit* that it is duping consumers by presenting bars that are “loaded with sugar” as wholesome and nutritious, and urged the judge to toss the “absurd” and “implausible” case… Read

And here’s a more recent one from CBS News:

• LaCroix ingredients: Lawsuit alleges “all natural” claim is false: LaCroix sparkling water is facing a lawsuit alleging its claims of “all natural” and “100 percent natural” are misleading because…”Testing reveals that LaCroix contains a number of artificial ingredients, including linalool, which is used in cockroach insecticide.”

And here’s one more from CSPI (an October 24 addition):

• CSPI sues Jamba Juice: its juices, CSPI charges, are made from cheap concentrates as well as fresh fruit.

Addition, December 11

• Article about the five most active lawsuits

Remember “pink slime” the pejorative name for what BPI (Beef Products International) much prefers to call “lean, finely textured beef (LFTB),” so much so that it is suing ABC News under South Dakota’s “disparagement of agriculture” or food libel law.

This is not a joke.  BPI is suing for $1.9 billion in damages and this could go to $5.7 billion under South Dakota’s Food Product Disparagement Act.

The New York Times recounts the history of pink slime and reminds us that Michael Moss won a won a Pulitzer Prize for an article in which he mentions it in 2010.

I am riveted by Dan Flynn’s account of the trial in Food Safety News.

May 30:  The trial opens, with ironic timing.

But the BPI vs. ABC lawsuit is going forward just as demand is also coming back for LFTB, two years after depiction of the product in the media as “pink slime” put consumer pressure on retailers and restaurants to pull the product.Now, however, many of those same restaurants and retailers fear losing their customers for beef patties because they cost too much. LFTB, produced by both BPI and Cargill, is in demand to keep hamburger prices down.

June 5:  The jury trial begins.

At issue is whether the the network and its reporter violated South Dakota’s Agriculture Food Product Disparagement Act. If it did, any award won at trial  could be tripled under the Act — to as much as $5.7 billion in this case. The jury will have to decide if the network and its reporter defamed the product known within the meat industry as lean finely textured beef by repeatedly referring to it as “pink slime” in numerous reports beginning in March 7, 2012.

June 8:  BPI’s chief witness testifies.  She is professor Mindy Brashears, director of the International Center for Food Industry Excellence at Texas Tech.

She told the jury that BPI’s lean finely textured beef (LFTB) is meat, is beef, is nutritious and is entirely safe to eat…In the past four years, Brashears said, she not only examined everything she could find about BPI, but also conducted her own studies. Her time on the project totaled 1,250 hours and BPI paid her a private consulting rate of $250 an hour for a total of about $335,000.

June 9:  ABC’s lawyer,  Dane Butswinkas, starts his cross-examination

Butswinkas did get the professor to admit BPI was suspended from the National School Lunch Program on multiple occasions in 2007 and 2008. Brashears said those suspensions were essentially voluntary actions by BPI taken after pathogens were discovered in its product by the lab working for the lunch program. She said the action was consistent with BPI’s food safety plan.

I have a long-standing interest in this case, dating back to 2009 when I first started writing about it.

• December 30, 2009 The latest recall: mechanically tenderized beef
• March 30, 2012  I’ve been lobbied! Intense efforts to save pink slime aimed at governors, USDA officials, and me
• April 1, 2012 The dilemma of pink slime: cost or culture?
• April 2 2012  “Pink Slime:” Some questions about what’s really at stake
• April 4, 2012 Oops. Apologies to Mike Osterholm
• April 11, 2012  The legacy of LFTB (a.k.a “pink slime”): power politics in action
• September 14, 2012  Maker of “pink slime” sues everyone who calls it that
• December 18, 2013  American Meat Institute defines Fine, Lightly Textured Beef (a.k.a. “pink slime”)

I will continue to follow this trial with great interest.  Most lawyers I know think that food libel laws will not hold up in court.  Let’s see what this jury says.

The Center for Science in the Public Interest sent out a press release yesterday to announce a lawsuit filed on behalf of the nonprofit Praxis Project.

The complaint says Coca-Cola and its trade association, the American Beverage Association (ABA), mislead the public when they trash the science linking sugary drinks to obesity, type 2 diabetes, and the like.

It cites the August 2015 account in the New York Times of Coca-Cola’s funding of the Global Energy Balance Network, which aimed to shift attention from poor diets as a cause of obesity to lack of physical exercise.  Coca-Cola spent $120 million on research from 2010 to 2015 that could cast doubt on evidence linking health risks to sugary drinks.

It also cites quotations from officials of Coca-Cola and the ABA and researchers they fund “making false and deceptive statements about sugar-sweetened drinks.”  For example:

• Coca-Cola’s senior vice president, Katie Bayne, claims that “[t]here is no scientific evidence that connects sugary beverages to obesity.
• “Simply put, it is wrong to say beverages cause disease,” the ABA stated in another release.
• One of the scientists funded by Coca-Cola, Dr. Steven Blair, stated that “there is really virtually no compelling evidence” that sugar drinks are linked to the obesity epidemic.

The complaint also charges that Coca-Cola paid dietitians to promote sugary drinks; it quotes one dietitian who suggested that an eight-ounce soda could be a healthy snack, like “packs of almonds.”

It will be interesting to see how this lawsuit fares.  Stay tuned.

This is one of FoodNavigator-USA’s special edition collections of articles on similar themes, in this case food labeling and lawsuits over labeling issues.  These are a quick way to get up to speed on what’s happening from a food industry perspective .  FoodNavigator introduces this collection:

Food and beverage companies have faced a tsunami of false advertising lawsuits over the past five years. But how big of an issue is this for the industry, who has been targeted, and what strategies are working, both for plaintiffs and defendants in these cases? In this special edition, we also look into labeling issues and trends, from healthy, Paleo and grass-fed claims to NuTek’s potassium salt petition.

• FOOD LITIGATION 101: Are you up to speed?  There have been hundreds of class action lawsuits directed against food and beverage companies in recent years over everything from evaporated cane juice to Non-GMO claims. But has the false advertising litigation trend peaked, and if not, what are the new areas of vulnerability for food companies? .. Read
• More farm-related claims to appear on pack, Innova Market Insights forecasts: Now that clean label has moved on from being a trend to becoming “the new rules of the game,” Innova Market Insights predicts more brands will rely on ‘farm to fork’ claims and bucolic imagery as a differentiator… Read
• Paleo certification requests have doubled annually, scheme embraced by ‘household names,’ says Paleo Foundation: Demand for Paleo-certified products are on the rise. But is the diet – and the certification scheme – based on sound science? We chat with Paleo’s critics and proponents to get the inside scoop… Read
• Dairy from cows fed GM feed is not ‘all-natural’, alleges lawsuit vs Dannon – but will it fly?  Has the FDA’s probe into ‘natural’ claims on food labels put a stop to the tidal wave of false advertising lawsuits engulfing food manufacturers? Not if a new complaint against Dannon is anything to go by, which also delves into the thorny issue of GMOs, another area currently being scrutinized by regulators. .. Read
• Future of Nutrition Facts, menu labeling & food safety are unclear under Trump, CSPI says: While President-elect Trump’s position on food policy is relatively unclear still, changes to the exhaustively researched and intensely debated Nutrition Facts label, menu labeling rule and food safety regulations could all be on the chopping block under the new administration, warns a top nutrition policy expert… Read
• Comments in FDA docket reveals consumers’ shifting perceptions of ‘healthy’: If the FDA’s decision to wade into the ‘natural’ debate seemed like an act of sadomasochism, its decision to re-examine the criteria underpinning ‘healthy’ claims on food labels looks set to be equally painful, judging by the first wave of public comments filed in the docket… Read
• FDA hints at how conventional foods can make structure/function claims: For the first time, FDA weighs in on what marketers must have on hand to support claims about conventional foods’ direct impact on consumers’ bodies. .. Read
• Soup-To-Nuts Podcast:The rise & future potential of grass fed claims: Grass-fed claims on products are a beacon for consumers who are health-conscious, want minimally processed food and care about animal welfare, and as such manufacturers increasingly are using them on products across categories and channels to drive up sales sharply… Listen now
• ProTings closes $1.2m financing round, changes name to Protes after spat with Original Tings: Brooklyn-based pea protein chip pioneer Proformance Foods has closed a $1.2m financing round led by a leading CPG company, and changed its brand name from ProTings to Protes following a trademark dispute with B&G Foods, which owns the Original Tings brand… Read
• Vox Pop: Consumers had this to say about GMO labeling…On the heels of President Barack Obama signing into law a federal bill requiring the disclosure of genetically modified organisms (GMOs) on packaged food and beverage products, we at Beverage Daily and FoodNavigator-USA asked consumers at a downtown Chicago farmers market what they thought of GMOs… Watch now
• Are ‘GMO-free’ (as opposed to ‘non-GMO’) claims legally defensible? As the Non-GMO Project states on its website, ‘GMO-free’ claims are “not legally or scientifically defensible due to limitations of testing methodology” coupled with cross-contamination risks. In future, however, that could change as testing methods become more sophisticated, predicts Clear Labs, a Californian start-up which recently hit the headlines after identifying human and rat DNA in hamburgers [albeit within safe parameters]… Read
• Label Insight: Your SmartLabel landing pages could become more important than your website or facebook pages: While the SmartLabel initiative has been dismissed by some as an elaborate conspiracy by big food companies to avoid mandatory on-pack GMO labeling statements, it will ultimately have far broader significance – and potentially a huge impact on how consumers view all food and beverage products – predicts product data and image platform Label Insight… Read
• House approves federal GMO labeling bill that nullifies Vermont law: The US House of Representatives has voted to pass a federal GMO labeling bill (306:117 votes) that would pre-empt and nullify all state-led GMO labeling laws including the one that has just come into effect in Vermont. .. Read
• Hampton Creek to settle worker classification lawsuit: Just Mayo maker Hampton Creek – one of a growing number of food companies sued for allegedly misclassifying workers as independent contractors as opposed to employees – is settling its case in order to avoid the hassle and expense of protracted litigation, court documents show… Read
• Kellogg, Post & General Mills urge courts to toss ‘meritless’ sugar lawsuits: Kellogg, General Mills and Post Foods have urged the courts to ditch high-profile lawsuits over the sugar content in their cereals, on the grounds that their claims are pre-empted by federal law and that no reasonable consumer would find their labels to be false or misleading… Read
• Dole Foods 9th Circuit ruling reignites all-natural lawsuit, ’emboldens plaintiff’s bar’: The Ninth Circuit Court of Appeals has reversed (in part) a lower court’s ruling that Dole Foods’ ‘all natural fruit’ labeling likely isn’t deceptive, resurrecting a four-year-old lawsuit, and giving fresh ammunition to plaintiff’s attorneys pursuing ‘all-natural’ cases… Read
• Parties clash over Welch’s ‘made with real fruit’ fruit snack label claims: Reasonable consumers may well be misled by the packaging of Welch’s fruit snacks, a magistrate judge has concluded, prompting a lengthy rebuttal from the defendants in court documents filed this month. .. Read
• Shoppers aren’t confused by our labels, Chobani tells court: ‘Plaintiffs count on a consumer who is a veritable fool’: A false advertising lawsuit alleging that Chobani’s labels are confusing and deceptive, paints American consumers as credulous fools unable to apply common sense when they go shopping, argues the yogurt maker in court documents urging the judge to toss the case… Read
• GMA to FDA: Sodium reduction guidance must be re-worded or industry will face a tidal wave of ‘frivolous litigation’: Two years isn’t enough time for food manufacturers to make the kind of reductions in sodium that the FDA is asking for, says the Grocery Manufacturers Association (GMA), which also urges the agency to tweak the wording of its guidance in order to avoid “a wave of frivolous litigation.”.. Read
• American Bakers Association backs ‘potassium salt’ petition: It sounds more clean label: The American Bakers Association (ABA) has joined the CSPI, Unilever, and other food manufacturers in voicing its support for a citizen’s petition asking the FDA to permit ‘potassium salt’ as an alternate name for potassium chloride on food labels, while the Salt Institute remains resolutely opposed… Read

Jennifer L. Pomeranz.  Food Law for Public Health.  Oxford University Press, 2016.

I’m told that food law is the hottest area in legal education right now.  At a time when law schools and lawyers are struggling, food law offers opportunities.  Food issues are so controversial that they constitute a full employment act.

Jennifer Pomeranz is my colleague at NYU.  Her book could not be more timely, and I was delighted to give it a blurb:

If you want to know how laws and regulations affect what you eat, how those laws are made, and why they cause so much controversy, Food Law for Public Health is a terrific place to start.

OK, everyone is presumed innocent until proven guilty, and executives of the Peanut Corporation of America (PCA) are getting their day in court, accompanied by an aggressive legal defense.

According to Food Safety News, PCA’s lawyers are claiming that the government’s requests for disclosure documents are so egregious that the case should be dismissed.

Here’s a comment on the case from Eat, Drink, Vote: An Illustrated Guide to Food Politics:

Irony alert: “egregious” is precisely the word I used to describe PCA’s actions related to its Salmonella problems more than a year ago:

I’ve been following this particular food safety tragedy for several years now.  The offenses were so egregious—officials blatantly ignored positive tests for Salmonella, for example—that some kind of punishment seemed warranted.

According to the account in USA Today:

The indictment alleges that PCA officials affirmatively lied to their customers about the presence of salmonella in PCA’s products,” said Stuart Delery, principal deputy assistant attorney general.

Delery also said some officials at PCA, no longer in business, fabricated lab results certifying to customers that the products were salmonella free “even when tests showed the presence of salmonella or when no tests had been done at all.”

If you would like to catch up on this endlessly fascinating case, in which contaminated peanut butter made 714 people in 46 states sick, here’s Food Safety News’ year-old timeline of its events.