“How Much is that Doughnut in the Window?”

America has a thoroughly documented problem of too many overweight and obese people, with consequences for them and their health, the overall health of the nation, and the cost of health care.  The premise of the requirement in the Affordable Care Act that the Food and Drug Administration (FDA) adopt regulations requiring the disclosure of calories of food purchased in certain restaurants and from vending machines is that knowing the number of calories will positively influence eating behavior and, over time, help to address the nation’s overweight and obesity problem.  The validity of that premise is about to be tested.

On November 25, 2014, FDA finalized two rules requiring calorie information be listed on menus and menu boards in chain restaurants, similar retail food establishments and vending machines with 20 or more locations.

Continue Reading FDA Labeling Requirements for Restaurants and Vending Machines

The United States Supreme Court paved the way today for competitors to challenge FDA-regulated food and beverage labels under the Lanham Act.  The Court’s opinion in POM Wonderful LLC v. The Coca-Cola Co. is the latest chapter in a long-running feud between POM Wonderful and Coca-Cola, which arose in 2008 when POM accused Coke of mislabeling one of its fruit juice blend products by prominently displaying the words “pomegranate blueberry” despite the product consisting mostly of less expensive apple and grape juices.  To date, Coke had successfully persuaded a California district court and the Ninth Circuit that POM’s Lanham Act claims were precluded by the Federal Food, Drug, and Cosmetic Act and attendant FDA regulations specifically addressing the labeling of fruit juice blends. 
Continue Reading Supreme Court Opens Door to Food and Beverage Label Challenges Under Lanham Act

James Bond MartiniJames Bond preferred his martinis “shaken, not stirred” but what about Greek yogurt with fruit at the bottom?  Well, according to the NAD, stirred or not stirred are both equally acceptable (no word on “shaken”).  That was only one of several questions NAD resolved in a challenge by Chobani to a Yoplait Greek Yogurt taste test commercial.

Chobani, Inc. (“Chobani”) challenged several of General Mills, Inc.’s (“General Mills”) advertising claims that “nearly 2 out of 3 people agree—Yoplait Greek Blueberry tastes better than the leading Chobani” and “tastes better than the leading Chobani.”  To substantiate these claims, General Mills used a national taste test comparing Yoplait blended blueberry “Greek” Yogurt to Chobani’s blueberry fruit on the bottom yogurt. 
Continue Reading NAD Issues Split Decision in Greek Wrestling Match over Taste Test, Social Media and Providing Free Goods to Bloggers Issues