Food and Drink

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jelly donutThe Affordable Care Act (ACA) gave our nation “Obamacare.” The ACA also gave the FDA the obligation to adopt regulations requiring “a restaurant or similar retail food establishment that is part of a chain with 20 or more locations doing business under the same name” to disclose the calories contained in “standard menu” items. This largely ignored ACA requirement, except by the chain restaurant industry, has yet to be implemented. It may never be.

The public health premise of requiring calorie disclosure is that it will affect positively consumer choice. Consumers will, so the theory goes, be less likely to eat what is “bad” for them (or more likely to eat what is “good” for them) if they are told that a jelly donut with a dollop of whipped cream on top is so loaded with calories that eating it will far exceed one’s daily calorie requirements.

The public health need for trying to influence consumers (restaurant eaters) to choose lower calorie items is clear. FDA’s Commissioner Dr. Scott Gottlieb wrote recently that “more than a third of U.S. adults are obese.” The question is not the need, but the practical feasibility, of addressing obesity and related health issues through a national system of menu labeling.Continue Reading Will FDA Be Forced To Eat Menu Labeling?

soft drinkSan 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 the City and County of San Francisco.

Advertisers challenged the ordinance under the First Amendment and sought a preliminary injunction to halt its enforcement, but lost in the district court. The Ninth Circuit reversed, agreeing with advertisers that the ordinance unconstitutionally chilled their protected commercial speech because the warning was too one-sided and burdensome – constituting 20% of an ad’s space – and that advertisers were likely to discontinue advertising completely.Continue Reading 9th Circuit Delivers Sweet Victory to Soft Drink Advertisers

orange splashJoining 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 were literally true.

The plaintiff in the Mott’s case asserted allegations similar to claims that had successfully withstood motions to dismiss in the past. He alleged that the fruit snacks’ use of phrases like “made with real fruit and vegetable juice” misled consumers to believe the products contained more fruits and vegetables than they did, and representations like “100% of your daily value of Vitamin C” falsely conveyed to consumers that the products were healthful and nutritious. Based on these allegations, the plaintiff brought consumer protection claims and related common law claims on behalf of himself and all California consumers who purchased Mott’s fruit snacks.Continue Reading The Tide Is Slowly Turning Against Food Labeling False Advertising Claims That Do Not Involve Affirmative Misrepresentations

spaghetti with tomato sauceWe love to eat! Maybe this is why we blog about taste claims and substantiation a lot! See here and here. And since at least one of us is always on a diet, when we indulge we like to pick the best tasting options. A competitive taste superiority message is incredibly powerful, and as such developing the necessary substantiation is exacting and expensive. Dollars to (better) tasting doughnuts, your less delicious competitor will be watching your back and seeking to test the quality of that evidence. Every year multiple challenges involving taste preference claims and the testing that supports them land on NAD’s plate to assess. One just this week actually involved dueling taste tests and considered the important question of who are the right people to test? We blogged about this before here in a case involving cereal looking at the right age range of people to test – buyers or eaters of the product. NAD’s general mantra is “taste tests should sample consumers who customarily use the products being compared.” The most recent case involving pasta sauce delved more specifically into this question of the appropriate testing universe.
Continue Reading Follow NAD’s Recipe to Support a Taste Preference Claim

For Medical Use OnlyThe 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 to take effect.

The proposed regulations ease restrictions for registered organizations and dispensing facilities’ exterior signage by eliminating the previous requirement that all registered cannabis dispensaries display no more than one exterior black-and-white sign. The new regulations also removes the previous restriction that banned dispensaries from illuminating, “at any time, a sign advertising a marihuana product located on any physical structure.”Continue Reading Proposed Regulations Update Advertising for Cannabis Organizations

DNA StrandEighty-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 as “weird stuff” akin to a “six-eyed monster” with “razor sharp teeth” and electric fur, a Wisconsin federal judge decided the ad went too far and would likely mislead consumers. Despite Arla’s reliance on a small disclaimer and “scientific debate” over the health and safety of dairy products made from cows treated with rbST, the Court enjoined Arla’s campaign, finding it was likely to mislead consumers into thinking rbST was unsafe, unhealthy, weird, and “altogether something you should not feel good about feeding your family.”

On April 25, 2017 Arla launched a $30 million advertising campaign targeting “ingredient savvy” U.S. consumers seeking more information about the products they are eating and feeing their families. The centerpiece of the campaign is a 30-second commercial titled, “Arla Cheese Asked Kids: What is rbST?”Continue Reading Arla’s Dairy Campaign Goes Sour After Court Enjoins Ad Claims Attacking rbST

sunshineThe 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 contains partially hydrogenated oil (PHO), a food additive high in trans-fat. The complaint, filed by Tony Walker, specifically stated, “although safe, low-cost, and commercially acceptable alternatives to PHO exist, including those used in competing brands and even in other ConAgra products, ConAgra unfairly elects not to use safe alternatives in Crunch ‘n Munch in order to increase its profits at the expense of the health of consumers.”Continue Reading Springtime for Food Marketers? Two Big Wins in California in Recent Days

beerPerhaps 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, LLC where individual Kayla Kraft sued Anheuser-Busch for copyright infringement, invasion of privacy, and violation of her right of publicity for using her image in an advertising campaign. This quite delightful photo shows Ms. Kraft drinking a beer and wearing a fake mustache and was allegedly used by Anheuser-Busch on posters and coasters in its “Every Natty Has a Story” Natural Light campaign. According to Kraft’s complaint, a friend took the picture of Ms. Kraft with Kraft’s phone in February 2013. Ms. Kraft then posted the photo to Facebook. Her friend later assigned her copyright in the photo to Ms. Kraft who registered the photo with the U.S. Copyright Office, and Kraft sued on February 20, 2016. Anheuser-Busch’s Answer is due by April 7, 2017.
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

orange splashWhich foods deserve to be labeled as “healthy?” The FDA considered this question at a public meeting on March 9th.

This public meeting was the latest stop on the FDA’s journey to redefine the term “healthy” in food labeling. The journey started almost 2 years ago in March 2015 when KIND received a warning letter from the FDA stating that many of its products labeled “healthy” were misbranded. KIND’s products, of which nuts are a primary ingredient, exceeded the “low saturated fat” threshold required to make the nutrient content claim “healthy” under FDA regulations.Continue Reading Process to Redefine “Healthy” Moves Forward with FDA Public Meeting

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 Muscle Milk powder products . . . in large, opaque containers that contain approximately 30% or more of empty space” and that “[c]onsumers, in reliance on the size of the containers, paid a premium price for [the products] which they would not have purchased had they known the containers were substantially empty.”

This case involves a challenge to what is known in the legal vernacular as food container “slack-fill,” which is the empty space in a food product container (usually the space between the food itself and the container’s opening; think of a bag of potato chips). More technically, the FDA defines slack-fill as “the difference between the actual capacity of the container and the volume of the product contained therein.” Under the federal Food, Drug and Cosmetic Act (FDCA) and FDA regulations implemented thereunder, a food product is considered misbranded “[i]f its container is so made, formed or filled as to be misleading.” Similarly, a container is misleading under FDA regulations if its contents cannot be fully viewed and it contains “nonfunctional slack fill.” So unless you are using clear plastic packaging or some other form of packaging where consumers can easily see exactly how much is inside, you need to look at how much slack-fill is present and why.Continue Reading Slack-Fill Consumer Class Action Challenge Not Enough Muscle to Survive