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Beware the Empty Space – Defending Food Packaging Design Against Slack Fill Claims

April 3, 2017

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There is a recent proliferation of slack fill litigation involving food products – both class and non-class suits. If you are a food manufacturer, distributor or seller, you need to be prepared to deal with these claims. A good starting point, particularly for manufacturers, is to analyze your food packaging designs to determine if and how you can defend them in court, and if not, how you can change your packaging to mitigate your risk against slack fill claims while also preserving the success of your brand. Successful slack fill claims can impose considerable risk, from injunctive relief that disrupts distribution and sales, including product recalls, to the often enormous expense of package design overhauls, which may require you to start all over your branding efforts, to the disgorgement of revenues from sales of violating products.

Slack fill is the difference between the actual capacity of a container and the

Prop 65 Developments – Notices of Violation for BPA in Receipts and Containers and OEHHA’s Listing of Styrene and Pesticides

Bryan Cave attorney Merrit Jones recently published two client alerts regarding California’s Prop 65 that impact the food and agriculture industries.

The first alert relates to the bisphenol-A (BPA) listing that took effect on May 11, 2016.  Already, two notices of violation have been served alleging harmful exposure to the chemical without providing a warning. One notice alleges BPA in receipt paper, and another alleges BPA in plastic water cooler jugs.  BPA is believed to be present in a wide variety of plastic consumer products, including many reusable food and drink containers, as well as in the epoxy lining in most canned food and beverage containers.  OEHHA has adopted an emergency regulation authorizing temporary point-of-sale warnings for exposure to BPA from canned and bottled food and beverages. That regulation is expected to remain in effect for more than a year in order to allow manufacturers time to implement alternatives

The FDA Dishes Out Food Label Changes

The current food label will soon be no more. After two decades, the Food and Drug Administration (FDA) just finalized the new Nutrition Facts label for packaged foods. Making it easier for consumers to make better informed food choices, the FDA announced that the changes are based a combination of public input, updated scientific information, new nutrition and public health research, and more recent dietary recommendations from expert groups.

For more information on the label changes from the Bryan Cave Food and Beverage Industry Team, see this client alert.

WTO Rules on Country of Origin Labeling

WTO Rules on Country of Origin Labeling

October 23, 2014

Authored by: Sara Ahmed

You may recall prior Digest posts regarding the World Trade Organization’s evaluation of the validity of the US Country of Origin Labeling (“COOL”) law.

On Monday, the WTO decided against the United States and has held that the COOL violates international fair trade rules. This is the third time the WTO has found COOL to be unfairly discriminatory and it is instigating Canada and Mexico to prepare to impose trade sanctions on US products such as wine and chocolate.

Consumer groups have also voiced their disappointment about the recent decision. Renee Hunt, a spokeswoman for the Ohio Ecological Food and Farming Association, an organic advocacy group, said: “It comes at the expense of consumers and American livestock farmers…Consumers want to have the choice of where their meat comes from, but, instead, Big Ag’s interests are protected.”  Chris Waldrop, policy director at

USDA Prevails at the D.C. Circuit

USDA Prevails at the D.C. Circuit

July 31, 2014

Authored by: Sara Ahmed

Yesterday, a D.C. Circuit decision came down upholding the country of origin labeling requirements (“COOL”). COOL is the law that requires retailers licensed under the Perishable Agricultural Commodities Act to, among other things, label certain meat products with information regarding where the animal was born, raised, and slaughtered.

In yesterday’s ruling, the Court took an expansive approach to the Zauderer standard and held that, at least in the context of meat labeling, the government can compel commercial speech for reasons beyond preventing deception.

Included in those reasons the court cited to were: “the context and long history of country-of-origin disclosures to enable consumers to choose American-made products; the demonstrated consumer interest in extending country-of-origin labeling to food products; and the individual health concerns and market impacts that can arise in the event of a food-borne illness outbreak.”

Dissenting Judge Janice Rogers Brown criticized that the ruling means “a business owner no longer has a

“Ascertainability” and food labeling class actions in the 9th Cir.

July 30, 2014

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Defendants often raise ascertainability when opposing class certification in food, beverage, and personal care products labeling litigation. District courts in the Ninth Circuit, however, sometimes reach different conclusions regarding a putative class representative’s burden when it comes to establishing ascertainability. Indeed, the subject has led to divergent decisions in the Northern District of California (often called “the food court”), with judges in that district commenting on the intra-district split. Two recent decisions, however, bolster defendants’ arguments that ascertainability in contested class certification proceedings (as opposed to settlement classes) is a significant hurdle for such plaintiffs to overcome.

Martin v. Pacific Parking Systems Inc., 2014 U.S. App. LEXIS 14200 (9th Cir. July 25, 2014), didn’t address consumer product labeling, but it addressed ascertainability. The Ninth Circuit affirmed the denial of class certification of claims under the Fair and Accurate Credit Reporting Act. While this is an unpublished decision and short on

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