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California Court Rules on Prop 65 Warnings for Certain Food Products Containing Lead

September 30, 2013


Those doing business in California are certainly aware of Prop 65 (formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986), which requires warning labels on products containing chemicals known to cause cancer and/or reproductive toxicity.  Nearly thirty years of rulemaking and litigation over Prop 65 has created a many nuances in the law, such as the one recently addressed by a California state trial court in Environmental Law Foundation v. Beech-Nut Corp. et al., Cal. Super Ct., No. RG11 597384 (July 15, 2013).

The question presented in this case is whether food products that contain low levels of lead, which lead was asserted by defendants as naturally occurring, required warnings under Prop 65.  Implicated foods included packaged fruit products, fruit drinks, and baby foods.  The court determined that the low levels of lead identified in the litigation did not result in exposures that required Prop 65

Safeway Sued Over “100 Percent Natural” Waffles Containing Preservatives

September 27, 2013


A California resident filed a class action lawsuit on September 18, 2013, against Safeway Inc., alleging that waffles advertised as “100 percent natural” contained a chemical preservative, sodium acid pyrophosphate. Affected products include “Open Nature 100 percent natural Multi-Grain Waffles” and “Open Nature 100 percent natural Homestyle Waffles.”  The class action suit, brought in the U.S. District Court for the Northern District of California (often referred to as the “Food Court”), asserts claims of common law fraud, negligent misrepresentation, breach of contract, and quasi contract/unjust enrichment. On behalf of a a subset class of California residents, the complaint asserts claims under the California False Advertising Law, the California Consumers Legal Remedies Act, the California Unfair Competition Law, and common law theories of breach of express warranty. Plaintiffs are seeking injunctive relief and monetary damages.

Sodium acid pyrophosphate is a preservative used in food products, and is generally recognized as safe

FDA To Conduct Environmental Impact Statement on Draft Produce Rule

FDA announced today that it will conduct an environmental impact statement (EIS) on the draft Produce Safety Rule proposed in January 2013.    An EIS is required under the National Environmental Policy Act for certain government agency actions that may significantly affect the quality of the human environment.  The EIS is a tool used by the agency to tailor the specific action, such as rulemaking, to address environmental concerns.  FDA indicated that it is conducting the EIS “because it has received information through comments and its own analysis that an environmental analysis is needed.”  FDA is also commencing a scoping process to determine the scope of the environmental review.  Comments on the scope of review FDA should undertake are due November 15, 2013, the same day that comments on the substantive provisions of the draft Produce Safety Rule are due.  FDA has indicated that the EIS process is not anticipated

FDA Extends Comment Period on Produce and Human Food Rules

FDA announced today that it is extending by sixty days the deadline for commenting on the proposed rules for Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food and the proposed Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption.  The new deadline for comments is November 15, 2013, and FDA has indicated that this will be the last extension of time.

The two draft rules were originally proposed in January of 2013 to implement provisions of the Food Safety Modernization Act.  The proposed Human Food rule will, among other things, require hazard analysis and critical control points (HACCP) plans for domestic and foreign facilities that manufacture, process, pack or hold human food.  The proposed Produce Safety Standards are prevention-based standards that require those growing, harvesting, packing or holding produce on foreign or domestic farms to undertake a science-based risk analysis of

Pepsi Settles “All Natural” Litigation Regarding Naked Juice

August 2, 2013


PepsiCo has agreed to settle a class action lawsuit brought in 2011 related to labeling of certain Naked Juice products as “all natural.”  The litigation alleged that the use of certain synthetic ingredients, including a synthetic fiber, were false and misleading in light of the “all natural” claim.  The ingredients at issue included zinc oxide, ascorbic acid, and calcium pantothenate.  PepsiCo agreed to pay $9 million to settle the lawsuit, and also to remove the “all natural” claim from its Naked Juice products.  Plaintiffs also claim that Naked Juice contains GMO ingredients despite labeling indicating the products are GMO-free, an allegation that PepsiCo denies.  Nonetheless, PepsiCo has announced an intention to seek third party certification of the non-GMO status of Naked Juice product bearing the GMO-free claim.

This suit against PepsiCo is one of dozens of pending lawsuits against food companies for using “natural” or “all natural” claims where

FDA Issues Guidance on “Gluten Free” Labeling

FDA issued a final rule today on the voluntary use of “gluten-free” on food labels, as directed by the Food Allergen Labeling and Consumer Protection Act.  In summary, FDA set a threshold for gluten of less than 20 parts per million in foods that are labeled “gluten-free,” “no gluten,” “free of gluten,” and “without gluten.”  Food manufacturers will have one year to bring their labeling into compliance with the new regulation.  After that one year implementation period, any food labeling “gluten-free” or a similar claim with gluten more than 20 parts per million will be considered misbranded.  A threshold of 20 parts per million was selected because that is the lowest level of gluten that can currently be detected with validated methodology, and, as stated by FDA, “some celiac disease researchers and some epidemiological evidence suggest that most individuals with celiac disease can tolerate variable trace amounts and concentrations of

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