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Regulatory & Litigation Developments for Advertisers and Marketers

Category Archives: Food and Drink

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9th Circuit Delivers Sweet Victory to Soft Drink Advertisers

By Leonard Gordon and Kathleen Sheridan on Posted in California, FDA, First Amendment, Food and Drink
San Francisco found itself in a sticky situation after the Ninth Circuit struck down a city ordinance that would have required soda companies and other makers of sugar-sweetened beverages to place the following warning on their ads: WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from … Continue Reading

The Tide Is Slowly Turning Against Food Labeling False Advertising Claims That Do Not Involve Affirmative Misrepresentations

By Dan Silverman and Elise Gabriel on Posted in Class Action, Food and Drink, Product Labeling
Joining a growing trend in federal court jurisprudence, the U.S. District Court for the Central District of California dismissed a class action complaint because it found that the Mott’s fruit snacks at issue did not affirmatively misrepresent their contents. In short, the court held that Mott’s fruit snacks’ labels could not deceive consumers because they … Continue Reading

Proposed Regulations Update Advertising for Cannabis Organizations

By Taylor Sachs on Posted in Food and Drink, Retail
The New York State Department of Health recently proposed a new set of regulations that would loosen marketing and advertising laws affecting New York’s medical cannabis program. The proposed regulations were published in the New York Register on August 23, 2017, and are open for a 30-day public comment period before the new regulations are … Continue Reading

Arla’s Dairy Campaign Goes Sour After Court Enjoins Ad Claims Attacking rbST

By Randy Miller and Kevin Weigand on Posted in Food and Drink, Lanham Act
Eighty-eight percent of consumers are willing to pay more for healthier foods. Manufacturers have responded by focusing marketing campaigns on the health and safety benefits of their products, often at the expense of their competitors. But when Arla Foods portrayed a seven-year old girl defining a common hormone used to increase milk production in cows … Continue Reading

Springtime for Food Marketers? Two Big Wins in California in Recent Days

By Angel Garganta on Posted in California, Class Action, FDA, Food and Drink, Product Labeling
The coming of spring has been accompanied by good news for two food marketers—ConAgra and Bumble Bee Foods—in their respective court fights in California. In the Northern District of California, a federal judge dismissed a putative class action against ConAgra alleging that the marketer’s Crunch N’ Munch product violated California’s unfair competition law since it … Continue Reading

A Timely Reminder to Re-Examine Your IP Clearance Protocol: Anheuser-Busch Sued by Individual for Use of a Photo She Posted to Social Media

By Linda J. Zirkelbach and Melissa Landau Steinman on Posted in Food and Drink, Internet/Social Media, Sweepstakes/Promotions
Perhaps some readers once (or still do!) enjoyed some Natty Light while listening to the Beastie Boys. Some time ago, we blogged about the ongoing Beastie Boys litigation against Monster Energy over copyright and right of publicity issues for a video Monster Energy posted on its website. The next case to watch is Kraft v. Anheuser-Busch, … Continue Reading

Slack-Fill Consumer Class Action Challenge Not Enough Muscle to Survive

By Stephen R. Freeland and Amy Mudge on Posted in FDA, Food and Drink
Last week, the Southern District of New York dismissed with prejudice a putative consumer class action alleging that containers for Muscle Milk protein powder violated New York consumer protection laws because they were approximately one-third empty at the time of purchase. More specifically, the plaintiff’s Amended Complaint contended that “Defendant CytoSport, Inc. intentionally packaged its … Continue Reading

The FTC Weighs in Further on All Natural Claims

By Leonard Gordon on Posted in Claim Substantiation, FDA, Food and Drink, FTC
At last year’s Kennedy Center Honors, Aretha Franklin brought down the house and brought President Obama to tears with her rendition of Natural Woman. Marketers relying on “all natural” claims also may feel like crying these days. We’ve blogged frequently about natural claims; see this recent post. Much of the misery in this area results … Continue Reading

Court Finds 5-Hour ENERGY® Can Support Some but Not All of Its Claims

By Leonard Gordon on Posted in Claim Substantiation, Food and Drink, FTC
We have written several times about the FTC’s effort to rein in what it sees as unsubstantiated cognitive improvement claims (see prior blogs: Brain Training, Lumosity, Word Smart, and Your Baby Can Read). Well, the states appear focused on this segment, too. On October 7, 2016, after two years of litigation and a trial, Judge … Continue Reading

Ninth Circuit Decides Not To Stay Natural Case, But Read the Fine Print

By Randy Shaheen, Angel Garganta and Shahin O. Rothermel on Posted in Claim Substantiation, Class Action, FDA, Food and Drink, Product Labeling
When courts decide to stay actions to await FDA guidance in an area, it’s only natural that our ears perk up. Which has been going on a lot, with cases such as Kane v. Chobani and Swearingen v. Santa Cruz Natural, Inc. Last week, however, the Ninth Circuit Court of Appeals, which had previously opted … Continue Reading

Class Action Labeling Claims Partially Evaporated, But What’s Left May Signal a Revival of “Evaporated Cane Juice” Claims

By Stephen R. Freeland on Posted in Class Action, FDA, Food and Drink, Product Labeling
Earlier this year, we discussed the Ninth Circuit’s decision staying a consumer class action against Chobani challenging its listing of “evaporated cane juice” as an ingredient on its yogurt labels. According to the plaintiffs in that case, “evaporated cane juice” was simply code for sugar, and Chobani therefore allegedly misled them about the healthiness of … Continue Reading

Major Changes Coming to Nutrition Facts and Supplement Facts Labels Near You

By Michelle Jackson, Kristen R. Klesh, Jonathan Havens and John Moore on Posted in FDA, Food and Drink
FDA finalizes rule to revise Nutrition Facts panels for foods and Supplement Facts panels for Dietary Supplements On May 20, 2016, the U.S. Food and Drug Administration (FDA or the Agency) issued a final rule (Rule) that overhauls the design and content of nutrition labeling for foods and dietary supplements (known as the Nutrition Facts … Continue Reading

FDA Reverses Stance on Kind Snack Bar Labels and Re-Evaluates Its “Healthy” Standard

By Laura Arredondo-Santisteban* and Randy Shaheen on Posted in FDA, Food and Drink
The U.S. Food and Drug Administration announced this week that Kind LLC may label its snack bars as “healthy,” sort of. In 2015, the FDA warned Kind that several of its products were misbranded as “healthy,” and that such labeling falsely claimed that the snacks were low-fat or rich in anti-oxidants, among other things. The … Continue Reading

Soup Competitors Stir the Pot on Local Sourcing Claims at NAD

By Amy Mudge and Randy Shaheen on Posted in Food and Drink, NAD
With the popularity of the eating local movement, it’s no wonder food companies want to promote when they do business with local farmers or have small batch local operations. NAD recently provided some guardrails for such claims in a case involving General Mills. Its Progresso Soups tout “Vineland, New Jersey: Home of Progresso” and “This … Continue Reading

Coffee Talk with Elaine Kolish: CFBAI Director Looks Back and Forward

By Randy Shaheen and Amy Mudge on Posted in Children/Kids, CoffeeTalk, Food and Drink
Our friend Elaine Kolish, Director of the Children’s Food and Beverage Advertising Initiative is stepping down shortly after a remarkable ten year run. So we thought this was a great opportunity to sit down with Elaine and look back over her accomplishments, what might be coming next for the organization, and lessons that companies in other … Continue Reading

Consumer’s Green Tea Class Action De-Caffeinated

By Stephen R. Freeland on Posted in California, Food and Drink, Product Labeling
C.S. Lewis once wrote that “[t]ea should be taken in solitude.”  A California federal court agrees, ruling Tuesday that a consumer’s false labeling claims against tea manufacturer R.C. Bigelow could not proceed as a class action due to the lack of an acceptable classwide damages model as well as standing. The consumer’s complaint targeted two … Continue Reading

Ninth Circuit Stays Class Action Food Labeling Lawsuit Until the FDA Completes Review

By Randy Shaheen and Christopher Boone on Posted in Class Action, FDA, Food and Drink, Product Labeling
The pitter patter of class action footsteps that food companies hear may have gotten a bit quieter, at least for now, based upon a Ninth Circuit decision in Kane v. Chobani this week.  The lawsuit centers on Chobani’s use of the terms “evaporated cane juice” and “only natural ingredients” on its yogurt labels.  According to … Continue Reading

CoffeeTalk on Native Advertising with FTC Commissioner Brill

By Amy Mudge and Randy Shaheen on Posted in CoffeeTalk, Food and Drink, FTC, Green claims, NAD
We like drinking coffee; thoughtful conversations with friends and watching videos so we thought why not do all three. Below is the first of periodic vlogs that we hope to bring to you – FTC Commissioner Brill sharing some good coffee, good company and some thoughts on Native Advertising and whose shoes she tries to walk in when parties … Continue Reading

CA Agency Proposes Emergency Bisphenol A (BPA) Exposure Warning Regulation, Maximum Allowable Dose Level for BPA

By Michelle Jackson and Jonathan Havens on Posted in California, Food and Drink, Legislation
CA Office of Environmental Health Hazard Assessment proposes both an emergency regulation to allow temporary use of a standard point-of-sale warning message for BPA exposures from canned and bottled foods and beverages, and a Proposition 65 Maximum Allowable Dose Level for BPA On March 17, 2016, the California Office of Environmental Health Hazard Assessment (OEHHA) … Continue Reading

Have You Evaluated Your Products and Product Packaging for BPA Content? A Prop 65 Warning is Required Beginning in May

By Michelle Jackson, Todd Harrison, Claudia A. Lewis and Matthew S. Poliner* on Posted in California, Food and Drink
Marketers of consumer products, including foods, beverages, dietary supplements, OTC drugs, and cosmetics, should be evaluating their products, including product packaging, for the presence of bisphenol A (BPA) without delay. On May 12, 2016, the one-year grace period permitted by California’s Office of Environmental Health Hazard Assessment (OEHHA) ends, and companies whose products expose California consumers … Continue Reading

NAD Sure Don’t Like Those Christmas Cookies Babe

By Amy Mudge and Randy Shaheen on Posted in Food and Drink, FTC, NAD, Non-US, Product Labeling
Well not exactly.  They do not care for Indonesia Butter-Flavored Cookies labeled as Danish Butter Cookies.  But it gave us an opportunity to share one of our favorite country Christmas songs from George Straight with our dear readers: We blogged about this case when it came out this summer.  The NAD recommended the company discontinue … Continue Reading

FTC Considers Advertising of Homeopathic Drugs

By Sarah Abramson on Posted in FDA, Food and Drink, FTC, Workshops
On Monday, September 21st the Federal Trade Commission (“FTC”) held a workshop entitled Homeopathic Medicine & Advertising (“workshop”). The workshop consisted of three panels: one discussing the homeopathic industry parameters generally, one discussing the science of homeopathic medicine, and the last discussing the legal and regulatory issues surrounding the marketing of homeopathic medicines. … Continue Reading
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