Digest

Bryan Cave Digest

Advertising

Main Content

The Demise of Country of Origin Labeling (COOL)

The Demise of Country of Origin Labeling (COOL)

May 26, 2015

Authored by: Sara Ahmed

Digest has been tracking the U.S. Country of Origin Labeling (“COOL”) rules that the WTO decided last year violate international fair trade rules.  It was the third time the WTO found COOL to be unfairly discriminatory.

In response to the threat of retaliation by Canada and Mexico, last week, the House Agricultural Committee voted to repeal a portion of COOL.  Under the bill, beef, pork, and chicken products will likely no longer state where the animals were born, slaughtered, and packaged.  The USDA had previously tried to no avail to revamp the rules upon the WTO’s prior rulings.

The U.S. National Farmers Union’s President, Roger Johnson, has been vocal in his feelings against the move to repeal portions of COOL and stated: “The House Agriculture Committee has succumbed to lobbying and scare tactics from foreign governments and multinational meatpackers and inserted itself prematurely into the WTO process by voting for a bill

A new circuit split regarding food labeling consumer fraud claims

March 18, 2015

Categories

A recent opinion from the Ninth Circuit may cause considerable confusion regarding what food manufacturers may put on their labels outside of the familiar Nutrition Facts Label. In fact, the opinion filed March 13, 2015, is at odds with earlier unpublished decisions from the Ninth and Third Circuits.

Reid v. Johnson & Johnson, No. 12-56726 (9th Cir. Mar. 13, 2015), is part of the wave of food labeling class actions making its way through the Ninth Circuit. That plaintiff alleged a host of consumer fraud claims based on the defendants’ Benecol vegetable oil-based spread. Benecol’s label prominently states that the product contains “No Trans Fat.” In truth, the product contains small amounts of trans fat, which the plaintiff contends is quite harmful to human health.

The difficulty that Reid presents is that FDA regulations require that the Nutrition Facts Label on Benecol state that

Food and Beverage Class Actions Are on the Rise

September 19, 2014

Categories

The latest Bryan Cave white paper on advertising class actions indicates an increase in class action filings affecting the food and beverage industry.  The paper, which analyzes class action complaint filings in the first two quarters of 2014, reveals the following:

  • Nearly 50% of the advertising class action complaints during the relevant time period were in the food and beverage (36%) or dietary supplement (12%) industries.  This number jumps to nearly 75% if other industries regulated by the Federal Food, Drug and Cosmetic Act are included. (Cosmetics accounted for 11%, pharmaceuticals for 8%, weight loss and pet care products for 4% each.)
  • Each quarter in 2014 represents a significant increase when compared to the last quarter of 2013.
  • Most of these food and beverage advertising class actions related to food labeling and nutrition content (26%), although “natural” claims still comprise a significant number of filings (18%).

The white

New FDA Guidance on “Gluten Free” Claims

Following up on last year’s “gluten-free” labeling rule, the FDA has now published guidance to help industry interpret and apply the rule.  All food products claiming to be “gluten-free” must comply with the rule by August 5, 2014.  At its essence, according to the FDA, “gluten-free” means that the food does not contain an ingredient made from a gluten-containing grain unless that grain has been processed to remove the gluten and the remaining gluten in he ingredient does not exceed 20 parts per million.  Food containing unavoidable amounts of gluten, such as from cross-contact, must still be below the 20 ppm threshold to use the “gluten-free” claim.  The rule does not require testing of gluten levels, but a company using the claim is responsible for ensuring that its product meets the established threshold to avoid product being adulterated and/or misbranded.

Interestingly, FDA has specifically stated that the “gluten-free” claim can

Class Certification In Food Labeling Class Actions Gets Messy In The “Food Court.”

June 24, 2014

Categories

Three recent decisions from two judges in the Northern District of California provide us with a lot of information regarding where food labeling cases are headed in terms of class certification strategy. Notably, two of the decisions are from Judge Lucy Koh and granted class certification.  Of course, these losses from the defense perspective are disappointing, but it is important to understand them in order to develop effective defense strategies. The third decision is from Judge Charles Breyer and denied class certification. That opinion shows us strategies that work from the defense perspective. In addition, however, the opinion is also interesting because Judge Breyer recognizes the Northern District of California’s status as the epicenter of these cases and because he often expressly acknowledges that his reasoning differs from Judge Koh’s.  So bear with me as we go through three important class certification decisions before identifying some best practices

Supreme Court Issues Opinion in Pom Wonderful v. Coca Cola Allowing False Advertising Claims Against an FDCA-Compliant Label

Today, the Supreme Court issued an 8-0 opinion in Pom Wonderful LLC v. Coca-Cola Co., finding that compliance with the substantive advertising and labeling provisions of the Federal Food Drug and Cosmetic Act (“FDCA”) do not preclude a competitor from asserting a false advertising claim under section 43 of the Lanham Act.  This opinion opens the door for a company to assert Lanham Act claims against a competitor even where a product’s labeling and advertising otherwise meet the requirements of a prescriptive statute like the FDCA.

For more analysis on the opinion, see this alert.

The attorneys of Bryan Cave LLP make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.