Digest

Bryan Cave Digest

Labeling

Main Content

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,

California Recognizes State Claim for Foods Mislabeled as “Organic”

On December 3, 2015, the California Supreme Court held that a claim for intentionally mislabeling produce as “organic” is not preempted by the federal regulatory regime for certifying organic growers. This decision may tend to increase exposure to companies endorsing products as “organic” under California state law false advertising, unfair competition, and other consumer protection claims based on alleged misuse of the term “organic.”

Click here to read the Alert.

FDA Extends Menu Labeling Rule Compliance Date Until December 1, 2016

This morning, FDA Deputy Commissioner for Foods and Veterinary Medicine Michael Taylor announced that FDA is extending the compliance date for the menu labeling rules one year, making the new compliance date December 1, 2016.  Since finalizing the menu labeling rules in December of 2014, FDA states that it “has had extensive dialogue with chain restaurants, covered grocery stores and other covered businesses, and answered numerous questions on how the rule can be implemented in specific situations.”  Certainly, businesses impacted by the rule have been grappling with the substance and logistics of implementing the menu labeling rules, including working with suppliers to obtain additional information about products.  This alone can be a tricky proposition for items like alcohol and craft beers, where nutritional information required by the menu labeling rules is not always readily available.  The extension will allow all parties impacted by the menu labeling rules – a group

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

PROPOSITION 65 CLAIMS AND 4-MEI: PROVING THAT DEFERENCE TO THE FDA IS NECESSARY.

March 26, 2015

Categories

Plaintiffs have made food labeling class actions a rapidly-growing field in recent years, particularly in the Northern District of California. They typically rely on California’s regimen of consumer fraud statutes when bringing those claims. California also has Proposition 65, which requires labeling of substances that a state agency concludes may cause cancer or birth defects. The threshold for labeling is quite low, meaning that even the most mundane items often include—or should include—warnings. Indeed, plaintiffs recently have used the “lack” of a Proposition 65 label on food products as a basis for consumer fraud and other claims even though the Food and Drug Administration finds no health risk from the relevant ingredient and already dictates labeling requirements regarding the ingredient. Such lawsuits are irreconcilable with the purpose of federal food labeling requirements.

Proposition 65 And Its Relationship To 4-MeI In Beverages.

In the past

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

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.