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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.

FDA Extends Comment Period on Food Transportation Rule

FDA has extended the public comment period on its proposed “Sanitary Transportation of human and Animal Food” rule, which was originally published on February 15, 2014.  The new due date for comments is July 30, 2014, sixty days from the original due date of May 31, 2014.

Information regarding the proposed rule can be found here.  This rule is part of a series of new rules proposed by FDA to implement the Food Safety Modernization Act of 2011.  As further explained by FDA:

The goal of the proposed rule on the sanitary transportation of human and animal food is to prevent practices that create food safety risks, such as failure to properly refrigerate food, inadequate cleaning of vehicles between loads, and failure to properly protect food during transportation. The proposed rule addresses the sanitary transportation of both human and animal food traveling via motor or rail vehicle by establishing

FDA Revises Guidance on Prior Notice of Imported Foods

April 2, 2014


On March 31, 2014, FDA opened a sixty-day comment period on revised draft guidance regarding prior notice of imported foods.  As its name suggests, the rule requires notice to FDA prior to importing any food into the United States.  Nearly every Q&A in the guidance document has been updated, and changes have been made to the information that must be provided in a prior notice.  For example, under the new guidance a prior notice will need to indicate whether the food has been refused entry by another country.

This guidance, now in its third edition, has not been updated since May 2004, meaning the impacts of the Food Safety Modernization Act had not been taken into account.  Comments on the draft guidance are currently due May 30, 2014.

FDA consideration of “Evaporated Cane Juice” stops class action (for now)

March 31, 2014


On March 7, 2014, we reported that the FDA reopened the comment period as to whether Evaporated Cane Juice (“ECJ”) is an appropriate description to include on a food label.  At that time, at least one court had asked parties in a punitive class action to provide supplemental briefs regarding the effect of the FDA’s reopening of the comment period.  Reese v. Odwalla, Inc., No. 13-CV-947-YGR (N.D. Cal. 3/6/14) (directing parties to submit supplemental briefs).  A number of plaintiffs contend that ECJ is an improper term to include on a food label because it is nothing more than sugar.  Because federal regulations generally require labeling ingredients by their common or usual name, these plaintiffs argue that labels with “ECJ” violate federal requirements and California consumer protection laws.  See 21 U.S.C. § 341(i); 21 C.F.R. § 101.4(a)(1).

Following that supplemental briefing, the Reese court recently stayed the

FDA Re-Opens Comment Period Regarding “Evaporated Cane Juice”

March 7, 2014


A number of putative class actions argue that using “Evaporated Cane Juice” (“ECJ”) on food labels is deceptive because that ingredient is nothing more than sugar.  Under the primary jurisdiction doctrine, courts will defer to regulatory agencies that have particular expertise and responsibility for enforcing the law or overseeing an industry.  In many food labeling cases, the defendants argue that courts should defer to the Food & Drug Administration’s oversight.  The Northern District of California is the most active forum for food labeling class actions, and judges in that district have reached different conclusions as to whether the primary jurisdiction doctrine applies to such ECJ claims.  In March 2014, the FDA reopened the comment period as to whether ECJ is an appropriate description to include on a food label.  This development should help ECJ class action defendants, at least in the near term.

Until now, many

“All Natural” Litigation and Settlements on the Rise

“All Natural” Litigation and Settlements on the Rise

February 11, 2014

Authored by: Sara Ahmed

Litigation surrounding “all natural” claims has been ramping up, and settlements are on the rise.

Naked Juice paid $9 million dollars to settle claims about the “all natural” branding of its juices in 2013.  As of February 6th, Trader Joe’s is following suit and plans to pay out $3.38 million dollars in addition to discontinuing the use of “all natural” and “100% natural” on products that include ascorbic acid, cocoa processed with alkali, sodium acid pyrophosphate, vegetable mono- and diglycerides, and xanthan gum.

The FDA’s failure to define “natural” is contributing to the flurry of “all natural” consumer class actions, and there is no sign that the FDA plans to provide a definition anytime soon.  On January 6, 2014 the FDA declined a request from three federal judges for clarification of the meaning “natural.”

With little guidance from the FDA, companies are trying to find their own ways of avoiding costly lawsuits.  For some, re-branding is the

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