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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.

SWS/Kroger Category Management Program Toes the Line on “Tied House” Restrictions — TTB Ruling Raises as Many Questions as it Answers

February 24, 2016

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On February 11, the TTB released ruling 2016-1 in response to beverage alcohol industry players and trade groups questioning an initiative by Kroger and Southern Wine & Spirits, which would reportedly require payment by wholesalers to merchandisers selected by Kroger to direct the placement of brands and bottles on Kroger shelves across the country. Many in the industry saw this initiative as a possible violation of the “Tied House” rules designed to prevent unfair competitive practices across the industry’s three tiers (27 U.S.C. § 205). TTB’s ruling seeks to clarify what is and what is not permissible in terms of shelf plans and shelf schematics, but the ruling comes with a twist that may very well shake up established category management practices.

The ruling states that “[f]urnishing retailers with a shelf plan or shelf schematic… is not an inducement” in violation of the Tied House rules.   This is nothing new

The European Commission Takes Back the Reins on Novel Food

With the continuing influx of foreign foods, algae, insects, microorganisms and foods with new molecular structures in our diets, the European Union has decided to put in place a harmonized procedure to vet – or not – these “novel foods” before they are placed on the market. This procedure is set out in the recent EU-wide Regulation which will enter into force beginning 2018. “Novel food” is defined as any food product which was not generally consumed in the European Union before 1997 (the date of the first European legislation on this subject) or innovative food developed using new technologies.

Bryan Cave lawyers Kathie Claret and Raphael Roditi prepared this article on the new regulation, which will be of interest to food manufacturers and importers in the EU.

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,

Three Recent Cases Highlight Risks of Using Claims Of “Fresh” In Advertising 070-330 070-310 642-873 200-120 070-410 070-447 070-646 1Z1-030 9A0-129 300-115 350-001 070-321 OCM-CN 1Z0-507 MB2-703 SY0-401 70-346 PMP 70-533 70-462 MB2-704 1Z0-060 PMP 100-101 1Z0-061 642-584 100-101 117-202 3304 640-460 640-721 1y0-a24 c2090-540 c4060-155 117-202 1Z0-060 AWS-SysOps 1Z0-061 220-802 640-554 SY0-401 70-346 200-120 70-533 70-462 70-533 101 N10-006 350-018 810-401 SY0-401 70-346 200-120 70-533 70-462 1Z0-060 AWS-SysOps 1Z0-061 220-802 640-554 640-721 1y0-a24 c2090-540 c4060-155 117-202 ADM-201 2V0-621 HP0-S41 70-532 1Z0-803 9L0-422 350-018 2V0-621 1Z0-061 ADM-201 640-864 070-483 070-346 070-331 PRINCE2 Practitioner HP0-S41 70-534 1Z0-803 70-467 JN0-332 640-864 070-483 070-346 070-331 PRINCE2 Practitioner

In this post, we take a look at three recent decisions in which food industry defendants were accused of falsely advertising their food products as “fresh”. As discussed in our prior post, a clear-cut, consensus definition for “fresh” has yet to emerge in the United States, leaving food and beverage companies exposed to significant false advertising litigation. These three decisions highlight the risks of using “fresh” without a full understanding of what regulators and the court have previously considered truthful or misleading uses of the term.

ACCC v. Coles Supermarkets

The use of “fresh” to describe “fresh baked” bread has become the subject of litigation. At least one foreign court definitively ruled that “fresh baked” means baked from dough, and not re-heating fully or partially baked bread.

In 2014, Australia’s Federal Court fined Coles Supermarkets $2.5 million for improperly advertising bread as “Baked Fresh” and “Freshly

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.

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