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The Last Unicorn… Frappuccino?

While the mythical unicorn is a rare creature, it has recently become a marketing phenomenon, with the unicorn’s rainbow-laden powers being harnessed to sell unicorn-themed products that can cover you from literally head to toe, i.e., from makeup (such as “Unicorn Snot®”, a glitter gel) to slippers and even a toilet spray made with “unicorn farts” (Squatty Potty’s “Unicorn Gold®”). Perhaps inevitably, brand owners have begun to battle over who can lay claim to a unicorn trademark. And this includes drinks that sound like coffee (but largely are not).

Click here to read the Alert prepared by Bryan Cave attorneys Eric Schroeder, Steven Alagna and Nick Williamson in full.

New Federal Law Will Require Disclosure of GMO Content in Food

A new federal law will require food makers to disclose when foods contain genetically modified ingredients.

The law, which was recently signed by President Obama, will require such food products to be labeled with text, a symbol, or an electronic code readable by smartphone indicating the presence of GMOs. Small businesses will also have the option to label food products with a telephone number or Internet website directing customers to additional information.

The U.S. Department of Agriculture (USDA) has two years to draft regulations concerning which products require such disclosure, and additional details concerning what food makers must do to comply. After the regulations are finalized, food makers will have at least another year before the law takes effect.

Law preempts state and local GMO labeling laws.

The federal law preempts a similar Vermont law, Act 120, that took effect in July, as well as any other state or local

FTC Takes Action Against Personal Care Product Companies for Making False All-Natural Claims

“Natural” claims aren’t just for the food industry – the Federal Trade Commission recently approved four final consent orders against companies that allegedly misrepresented their personal care products as “All-Natural” or “100% Natural,” despite the fact that they contain man-made ingredients. For more information, see the alert posted here.

FDA Extends Comment Period for “Natural” Input

As many of you know, FDA has opened a docket to accept comments on whether and how it should define the term “natural” for food labeling purposes.  Today, FDA announced that it will be extending the comment period until May 10, 2016.   As outlined by FDA:

Although the FDA has not engaged in rulemaking to establish a formal definition for the term “natural,” we do have a longstanding policy concerning the use of “natural” in human food labeling. The FDA has considered the term “natural” to mean that nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in that food. However, this policy was not intended to address food production methods, such as the use of pesticides, nor did it explicitly address food processing or manufacturing methods,

Three Recent Cases Highlight Risks of Using Claims Of “Fresh” In Advertising 070-330 070-310 642-873 200-120 070-410 070-447 070-646 1Z1-030 9A0-129 300-115 350-001 070-321 OCM-CN 1Z0-507 MB2-703 SY0-401 70-346 PMP 70-533 70-462 MB2-704 1Z0-060 PMP 100-101 1Z0-061 642-584 100-101 117-202 3304 640-460 640-721 1y0-a24 c2090-540 c4060-155 117-202 1Z0-060 AWS-SysOps 1Z0-061 220-802 640-554 SY0-401 70-346 200-120 70-533 70-462 70-533 101 N10-006 350-018 810-401 SY0-401 70-346 200-120 70-533 70-462 1Z0-060 AWS-SysOps 1Z0-061 220-802 640-554 640-721 1y0-a24 c2090-540 c4060-155 117-202 ADM-201 2V0-621 HP0-S41 70-532 1Z0-803 9L0-422 350-018 2V0-621 1Z0-061 ADM-201 640-864 070-483 070-346 070-331 PRINCE2 Practitioner HP0-S41 70-534 1Z0-803 70-467 JN0-332 640-864 070-483 070-346 070-331 PRINCE2 Practitioner

In this post, we take a look at three recent decisions in which food industry defendants were accused of falsely advertising their food products as “fresh”. As discussed in our prior post, a clear-cut, consensus definition for “fresh” has yet to emerge in the United States, leaving food and beverage companies exposed to significant false advertising litigation. These three decisions highlight the risks of using “fresh” without a full understanding of what regulators and the court have previously considered truthful or misleading uses of the term.

ACCC v. Coles Supermarkets

The use of “fresh” to describe “fresh baked” bread has become the subject of litigation. At least one foreign court definitively ruled that “fresh baked” means baked from dough, and not re-heating fully or partially baked bread.

In 2014, Australia’s Federal Court fined Coles Supermarkets $2.5 million for improperly advertising bread as “Baked Fresh” and “Freshly

Not So “Fresh” Label and Advertising Claims Can Result In Litigation

“Fresh” is quickly becoming a not-so-fresh battleground for consumer-brought false advertising lawsuits as we see more and more actions challenging the use of “fresh” in advertising and labels for food and beverages.

Most recently, a federal district court in Illinois certified a class of consumers who claim that they were misled into believing that single-serving coffee cartridges contained “fresh” coffee, when in reality it was instant coffee. In another case filed this year in New Jersey, Whole Foods and Wegmans were sued for using the terms “baked fresh” or “fresh baked” in connection with their breads – the lawsuit claimed that these phrases indicated that the breads were made from scratch when instead the products were simply re-heated in the store (the suit was since dismissed on “standing” and injury issues).  And, an Australian court recently ruled that the Coles supermarkets could not use “Freshly Baked” to describe bread that

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