The Safe and Accurate Food Labeling Act’s Impact

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FDA’s steadfast position against formally addressing “Natural” claims on food products may soon be forced to change if the Safe and Accurate Food Labeling Act, which the House of Representatives passed on July 23, 2015, is enacted.

The Safe and Accurate Food Labeling Act (“SAFLA”) serves largely to prohibit state and local governments from enacting laws requiring food products containing GMOs to be labeled as such.  It also addresses “natural” labeling claims, which have been a hotly litigated issue in recent years.

SAFLA is premised on the notion that the presence of GMOs in a food product is not information that is material for distinguishing between such a food and a comparable food product not produced from or containing GMOs. Therefore, labeling is not necessary.

SAFLA does provide consumers, the food industry, trading partners, and other interested parties with a clear affirmation of safety for foods produced from, containing, or consisting of genetically engineered plants.

The bill now moves along to the Senate.  If the Senate passes the legislation in identical form, it will be final once signed into law by the President.

There are two notable subjects addressed under SAFLA.  First, no state or political subdivision of any state may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirement regarding use of genetically engineered plants for use in a food product that is not identical to the notification program established under SAFLA.  Second, SAFLA directs FDA to formally address “natural” claims on food product labels.

SAFLA Provides Guidelines for Voluntary GMO-Labeling

Title II of the Act addresses Genetic Engineering Certification.  SAFLA establishes a voluntary genetically engineered food certification program under USDA.  This certification program governs label claims regarding use or non-use of genetic engineering in food products.

The Secretary of Agriculture is responsible for establishing the voluntary genetically engineered food certification program which will govern labeling with respect to use of genetic engineering in food production.  The program will establish standards for selling or labeling a covered product as being GMO-free, or produced without use of genetic engineering.  This will ensure a nationally-uniform manner of labeling.

SAFLA Directs FDA to Define and Regulate “Natural” Claims

Title III addresses “Natural” food labels.  Under SAFLA, a food is deemed misbranded if its labeling contains an express or implied claim that the food is “natural” unless the claim uses the terms that have been defined by, and the food meets the requirements established in, FDA promulgated regulations.  Natural claims include the following: “natural,” “100% natural,” “naturally grown,” “all natural,” “made with natural ingredients” and any other terms specified by Secretary.

What can we expect if SAFLA is enacted?

If the legislation passes the Senate and is signed into law by the President, states will be prohibited from issuing mandatory laws for foods containing certain GMO and states will be prohibited from requiring foods containing GMOs to be labeled as such.  Further, the legislation will prohibit state and local governments from regulating GMO plants.

States will also be prohibited from making it unlawful for companies to label products containing GMOs as “natural.”  In place of state by state laws regarding “natural” labeling, FDA would be required to set formal requirements for “natural” labeling, something it has steadfastly avoided doing for years.  Specifically, the legislation directs FDA to establish rules formally defining how “natural” labeling can and should be used on food products. FDA currently has only an informal policy stating that foods labeled as “natural” cannot contain any added colors, artificial colors, artificial flavors, or synthetic ingredients.

Companies would be permitted to voluntarily label foods that do or do not contain GMO ingredients, but they would not be required to do so. The legislation directs the Department of Agriculture to establish a voluntary nongenetically engineered food certification program that would govern labeling of non-GMO food products in a uniform manner across the country. This is modeled after the largely successful USDA Organics program. A program like this would relieve companies in the food industry from any obligation to disclose use of GMOs in their product.

Companies voluntarily labeling products as GMO-free would need to follow a standard established under the legislation.  The legislation directs creation and implementation of a process to certify GMO-free food; therefore, a company labeling product as GMO-free may do so through the USDA-accredited certification process.

FDA would also be responsible for publishing and maintaining an online registry listing all genetically engineered plants intended to be used in food products.  If a producer intends to use a non-regulated genetically-engineered plant in its food products, it would first have to receive FDA approval that the food is as safe as comparable foods.

What are SAFLA’s proponents saying?

Proponents of the bipartisan legislation argue that GMOs have been deemed safe by FDA and science has repeatedly found that they are not harmful or unsafe.  Advocates stand behind findings of numerous renowned, well-respected groups that have all found GMOs to be safe.  Such groups include FDA, World Health Organization, American Medical Association, National Academy of Sciences, and American Association for the Advancement of Science.  Because GMOs have been found not to be harmful or unsafe, proponents argue that requiring products to be labeled as containing GMOs would cause undue alarm to consumers.

Without national legislation, a “patchwork” of state laws would increase prices, drive up food costs, and continue the rash of class action lawsuits currently bombarding food manufacturers.  Variations in state laws also disrupts the free flow of goods across our nation and threatens interstate commerce.  Consumers’ interests are also negatively affected by varying laws because the inevitable result is that product labels are inconsistent and present confusing information for consumers.  The absence of a national standard risks spreading misinformation.

But, for now…

While it is unknown how long it will be before SAFLA is voted on in the Senate, members of the food industry should not be sitting back waiting and watching.  Companies facing litigation involving “natural” or GMO-related labeling claims should certainly attempt to use this legislative action in defending (or at least staying) litigation against them.  Stay tuned. Time will tell how both the judicial branch and legislative branch will react to last week’s passage in the House.

Please feel free to contact a member of Cozen O’Connor’s Food and Beverage industry team for more information about the subject of this blog post or how Cozen O’Connor can be of help to you and your organization.

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Posted in "All Natural", Food, Food and Drug Administration, Labeling Claims

Are We Becoming More Social?

It goes without saying that there’s been much attention given to the use of social media in litigation.  As litigators, we regularly monitor Facebook, LinkedIn, Instagram  and other social media networks to surveille  those who have sued our clients and those that our clients are suing.  In the class action context, social media is being used on a more frequent basis as a cost-effective tool in providing notice to class members.  For example, in the case of Mark v. Gawker Media LLC,  1:13-cv-04347, a judge in the Southern District of New York recently approved the use of social media to notify putative class members of a pending wage and hour class action lawsuit.    Social media has even extended to service of process.  Cozen O’Connor’s Food and Beverage Industry team represents a client involved in a commercial dispute with one of its Egyptian-based suppliers.  Mincing Trading Corp. v. Aromatic Ingredients S.A.E., 13-cv-931.  Service of process of the Summons and Complaint, however, was rendered impossible due to the civil unrest in Egypt.  After finding the Egyptian supplier on LinkedIn and already having its e-mail address, Cozen O’Connor asked the District Court Judge in New Jersey presiding over the case for leave to use alternative methods of service via these media.  In its Order granting the motion, the Court found significant that the proposed methods of service have not been objected to by Egypt and that Defendant “would actually receive notice through same.”  Click here for a copy of the Order.

shutterstock_215260810The increased acceptance of social media as a means to providing notice – whether of a class action settlement or of a Summons and Complaint – is reflective of the dramatic change in the way we interact with one another, and represents a step in the right direction in providing real, targeted notice to litigants and protecting their due process rights.  As Minnesota Judge Kevin Burke noted in the case of Mpafe v. Mpafe, “[t]he traditional way to get service by publication is antiquated and is prohibitively expensive…[s]ervice is critical, and technology provides a cheaper and hopefully more effective way of finding respondent.”  There’s no doubt we’ve become more social.  Pretty soon we may even be speaking with each other on elevators.

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Posted in Uncategorized

Harsh Words for KIND Bars

shutterstock_81490126Kind, LLC received a rude awakening from the FDA when it notified the popular snack-maker that it was violating numerous federal regulations by allegedly misbranding four popular products. Kind is known for its widely-popular snack bars which are marketed as “wholesome,” “tasty,” and “convenient.” FDA’s warning prompted even more problems for Kind as the first class action was filed against it just three days later, mirroring FDA’s warning.

Kind’s labels contained nutrient-content claims that were purportedly unqualified given the bars’ ingredients and nutritional values. Four varieties (Kind Fruit & Nut Almond & Apricot, Kind Fruit & Nut Almond & Coconut, Kind Plus Dark Chocolate Cherry Cashew + Antioxidants, and Kind Plus Peanut Better Dark Chocolate + Protein) were allegedly misbranded because they were improperly labeled, among other things, as “healthy.” FDA warned that the products failed to meet the necessary requirement to qualify as “healthy” according to its definition of the term.

In the first class action filed on April 17, 2015, plaintiff Brandon Kaufer alleged he paid a premium for the four varieties of Kind bars subject to FDA’s warning, and based his allegations off of FDA’s letter to Kind. The complaint alleges violations of both federal regulations as well as California’s state consumer protections statutes. Kaufer is not alone. To date, two other proposed class actions have been filed containing similar allegations—another in California and one in New York.

There are two noteworthy implications of FDA’s letter to be considered in litigation. First, FDA’s action against Kind demonstrates that it is carefully monitoring products and holding companies to a high standard. Companies who pursue the “primary jurisdiction” defense (a defense that FDA is the appropriate entity to regulate labeling—not the courts) can now point to FDA’s exercise of its enforcement against Kind to strengthen its argument that FDA is taking an active role in regulating food labeling.

Second, the facts of this case demonstrate the need for “common sense” in an era in which consumers are bringing seemingly incessant claims regarding labeling and advertising in the ever-popular class action field. Despite FDA’s position that Kind bars are not “healthy,” due to the fat-content of the bars, this finding was largely based on the inclusion of ingredients that are widely considered healthy—nuts. Kind, which posted a response to FDA’s letter on its website, noted other seemingly healthy foods, such as avocados, eggs, and salmon, which are not “healthy” according to FDA. Few can argue, however, that these popular “super foods” are not healthy. Companies should seek early dismissal of claims, such as those against Kind, when common sense reveals the frivolous nature of such suits. Consumers’ lack of common sense should not be pardoned, as courts have already recognized. Federal courts dismissed actions against manufacturers of Froot Loops and Cap’Crunch with Crunchberries brought by customers who claimed they were misled to think that the sugary breakfast cereals actually contained real fruit.

The FDA letter can be seen as both a blessing and a curse in the food industry. It serves as a strong warning to companies to label with caution because FDA is taking a proactive role in enforcing definitions, which also may add credence to arguments that the primary jurisdiction doctrine should be invoked in this realm. On the other hand, FDA’s action undoubtedly prompted litigation against Kind. It is hard to argue that if it were not for FDA’s notice that the bars were not “healthy,” Kind would not have been subject to three class actions regarding the labeling in less than a week. It is also possible that other companies currently labeling products as “healthy” may now face suits after FDA brought attention to the term. Companies must strictly adhere to FDA’s regulations and be fully informed of all the terms and related definitions regardless of whether they agree with FDA’s definitions of terms, such as “healthy.”

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Posted in Food and Drug Administration, Labeling Claims

Lanham Act Claims Are Not Precluded by Compliance with the FDCA

In POM Wonderful LLC v. Coca-Cola Co., (June 12, 2014), the U.S. Supreme Court confirmed that companies can bring unfair competition actions under the Lanham Act even when their competitors have complied with the Federal Food, Drug, and Cosmetic Act (FDCA). The upshot of the decision is that food and beverage companies must carefully review their labeling, advertising and marketing campaigns to ensure that they are both complying with the FDCA and not subjecting themselves to Lanham Act exposure from making misleading product claims.

Plaintiff POM

POM Wonderful LLC (“POM”) produces and sells a pomegranate-blueberry juice blend. POM brought a Lanham Act suit against Coca-Cola for allegedly marketing one of its juices in such a way that it misled consumers into thinking that the product contained much more pomegranate and blueberry juice than it actually does. In fact, POM alleged that, together, pomegranate and blueberry juice made up only .6% of Coca-Cola’s product. Coca-Cola moved to dismiss in the District Court on the grounds that the FDCA and its regulations preclude and preempt any Lanham Act challenges to the method or content of Coca-Cola’s marketing of its juices. The Ninth Circuit affirmed in relevant part, and POM appealed.

The Lanham Act was enacted in 1946, for the purpose of “making actionable the deceptive and misleading use of marks in . . . commerce . . . [and] to protect persons engaged in . . . commerce against unfair competition . . . .” 15 U.S.C. Section 1127. The Act creates a cause of action based on unfair competition through misleading advertising or labeling. This provision allows competitors to sue each other, with the happy side result that consumers benefit from the elimination of misleading marketing campaigns.  Put another way, the statute is a way for the government to out-source some of its enforcement duties at no cost.

Coca-Cola argued that the FDCA statutory regime allowed it to use the allegedly misleading label. Unlike the Lanham Act, which relies on private actors to enforce its provisions, the FDCA and its regulations grant only the U.S. government the standing and authority to employ the statute.

The Supreme Court granted certiorari to consider whether a private party may bring a Lanham Act claim regarding a food or beverage label that is regulated by the FDCA. In addressing the preemption argument, the court observed that this was not a preemption case per se, since there were two federal statutes at issue, and not one state statute and one federal statute.

The court analyzed the two statutes and determined that there was no intent by Congress for the FDCA to act as an implied repeal of the Lanham Act. Rather, the Court observed, the statutes complement each other because while, “[b]oth touch on food and beverage labeling, . . . the Lanham Act protects commercial interests against unfair competition, while the FDCA protects public health and safety.” Specifically, the Court pointed out, the FDA does not pursue enforcement against all objectionable food labels, and so the Lanham Act helps fill a void for competitors, with the indirect result that consumers also benefit. And the Court noted that while the FDCA is enforced by the Food and Drug Administration, the Lanham Act permits private actors to sue competitors to “protect their interests on a case-by-case basis.”

The key takeaway from this decision is that a company’s strict compliance with the FDCA does not ensure that it will be free from a Lanham Act suit by a competitor. So food and beverage companies must scrutinize their labeling, advertising and marketing campaigns to ensure that they do not leave themselves exposed to Lanham Act liability.

As the Court noted, the FDA does not preapprove food and beverage labels, unlike drug labels.  Food and beverage companies, then, might reasonably believe that they are in compliance with the FDCA, only to find themselves subject to a Lanham Act suit, and, possibly, liability. Companies that do business in California must also make sure that they do not run afoul of California’s strict Unfair Competition Law as well, so a self-audit for possibly misleading labels is vital.

From a philosophical perspective, this holding seems to affirm the principle that private corporations with real financial stakes in the proceedings are better positioned to regulate the market than consumers or the government. Ultimately, should the cases go to trial, however, the public will still have its say in the matter.

Read the opinion in full.

Posted in California, False Advertising, Food and Drug Administration, Food Drug and Cosmetic Act, Food Manufacturer, Labeling Claims, Lanham Act, Preemption, Regulation

Raising “Cane” in Labeling Claims

Chobani

Class action plaintiffs again allege that the labeling on Chobani’s Greek yogurt violates FDA regulations and misleads consumers, even though a federal court in California dismissed a similar labeling class action earlier this year.  The New York complaint filed in federal court highlights the various ways plaintiffs scrutinize food and beverage labels in these actions that allege a product is not as healthy or natural as advertised.

In Stoltz et al. v. Chobani (No. 1:14-cv-03827), the purported class action plaintiffs allege that Chobani violates FDA regulations and misleads consumers into thinking its yogurt is healthy even though it is “glorified junk food.”  The plaintiffs allege that Chobani accomplishes this by listing “evaporated cane juice” instead of “sugar” in its list of ingredients, by featuring “0%” on its label without context, and even by referring to its product as “Greek.”

“Evaporated Cane Juice” or “Sugar”

The plaintiffs allege that Chobani wrongfully lists “evaporated cane juice” rather than sugar as an ingredient.  This allegation is not novel, and as with similar claims in prior lawsuits, these plaintiffs contend that evaporated cane juice is not the “common or usual name.”  Therefore, the plaintiffs contend, Chobani mislabels its yogurt in violation of the Food, Drug & Cosmetic Act.  Plaintiffs argue that Chobani “should say they sweeten their products with plain old sugar.”

To support these claims, plaintiffs cite to the FDA’s draft guidance wherein the agency stated that referring to sweeteners as “evaporated cane juice” is misleading.  However the agency has yet to issue formal guidance on the matter, having just closed the public comment period in May.  Chobani may argue, among other defenses, that the court should defer to the FDA and dismiss these claims under the doctrine of primary jurisdiction.  We have previously written about other plaintiffs’ errant reliance on this draft guidance, and about the split in whether courts will defer to the FDA’s regulation in this context.

In February, Chobani defeated similar class action allegations, but that victory does not necessarily mean the yogurt manufacturer will enjoy similar success here.  In the appropriately-named Kane et al. v. Chobani (No. 5:12-cv-02425) the U.S. District Court for the Northern District of California—the plaintiff-friendly “food court”—dismissed claims alleging that Chobani mislead its customers by listing “evaporated cane juice” instead of “sugar” as an ingredient.  However, the court emphasized that the plaintiffs’ pleadings failed to adequately allege reliance despite multiple opportunities to do so.  Should the court here find that these pleadings are not similarly flawed, it would decide any dispositive motions on different merits.

“0%” What?

These plaintiffs also allege that Chobani misleads consumers by prominently featuring “0%” on its labels without saying to what “0%” refers.  In actuality, this figure refers to the percentage of milk fat in the yogurt.  However the plaintiffs here allege that the yogurt maker intentionally showcases “0%” without context in order to “piggy-back” on the zero calorie marketing efforts of diet products such as Coke Zero and Pepsi Max, which contain zero calories.  The same plaintiffs simultaneously filed suit against Fage (Stoltz et al. v. Fage [No. 1:14-cv-03826]), one of Chobani’s competitors, with similar “0%” allegations.

Chobani Is Not “Greek” Enough

Not only do plaintiffs allege that Chobani mislabels its yogurt with “evaporated cane juice” and “0%” but they also contend that Chobani’s Greek yogurt is not even “Greek.”  Unconvinced by Chobani’s website explanation of the manufacturing process and qualities of a Greek yogurt, the plaintiffs charge that “Chobani” is derived from the Turkish language, its founder and CEO lives and opened his yogurt plant in New York.  Moreover, they allege that Chobani’s yogurt is not made in Greece and is not made by Greek nationals.

These suits demonstrate that plaintiffs’ attorneys continue to scrutinize food labels and file class actions alleging that a multitude of terms violate FDA regulations and mislead consumers.  Food and beverage manufacturers need to carefully ensure their labels comply with FDA regulations.  These manufacturers should scrutinize their labels to ensure that a “reasonable consumer” will not be misled, and that all claims on the packaging are defensible.  Regardless of whether the labels include “evaporated cane juice,” “all natural,” or other similar content, plaintiffs will latch on to any errors or omissions.  The same holds true when marketing through social media like Facebook and Twitter because even seemingly innocuous posts may serve fodder for plaintiffs when the posts are about these commonly-litigated issues.

 

Posted in "All Natural", Class Action, Evaporated Sugar Cane, False Advertising, Food and Drug Administration, Food Drug and Cosmetic Act, Food Manufacturer, Labeling Claims, Preemption, Sugar Substitutes

State GMO Labeling Laws: Friend or Foe?

Despite Vermont’s passage of its GMO labeling law and other states’ consideration of similar statutes, food manufacturers continue to support uniform federal legislation over the hodgepodge state-by-state approach that is developing. Pessimists among us might say that the FDA has been too slow to act and the war has already been lost. A careful review of Vermont’s labeling law, however, reveals that the proverbial glass may, in fact, be half full – at least to manufacturers of products that contain small amounts of GMO ingredients.

Vermont’s groundbreaking law provides that “a manufacturer of a food produced entirely or in part from genetic engineering shall not label the product on the package, in signage, or in advertising as ‘natural, ‘naturally made,’ ‘naturally grown,’ ‘all natural,’ or any words of similar import that would have a tendency to mislead a consumer.” The law, however, contains an exclusion for foods that contain GMO materials that, in the aggregate, do not account for more than 0.9% of the total weight of the processed food. Thus, Vermont’s GMO labeling law may actually provide food manufacturers with a powerful weapon, inasmuch as it seemingly authorizes the use of phrases such as “all natural” when the products at issue contain nominal amounts of GMO ingredients – 0.9% or less.

Tenacious plaintiffs’ lawyers, of course, will argue that the Vermont statute does not in any circumstance authorize the use of the phrase “all natural” but, rather, merely exempts products containing 0.9% or less GMO ingredients from its labeling requirement. Stay tuned, as the foregoing will likely be one of many battlegrounds surrounding Vermont’s statute.

Another half-filled glass lies in California’s GMO labeling bill known as S.B. 1381, which cleared the California Senate Appropriations Committee on May 23, 2014. If passed, the bill will require manufacturers to label certain foods containing GMOs. Like Vermont’s statute, the bill contains a number of exceptions, one of which is for packaged food in which the materials produced through genetic engineering account for 0.9% or less of the total weight. Although the California bill as presently drafted does not contain language that explicitly authorizes the use of phrases such as “all natural” on labels of  products containing nominal amounts of GMOs, it may nevertheless become a valuable weapon in opposing false labeling suits since it establishes a threshold level below which  products need not bear GMO labeling. More importantly, an argument can be made that a reasonable consumer would not expect products labeled as “all natural” to be GMO-free but, rather, to contain 0.9% or less GMO material.

It should be noted that prior attempts to impose GMO labeling legislation in California failed in the face of stiff opposition from industry. Maine and Connecticut have passed GMO labeling laws with similar threshold limits. Those laws, however, are not yet in effect.

Stay tuned. Tomorrow may be a sunny day or perhaps it will rain. It all depends upon your perspective.

Posted in "All Natural", Class Action, Food and Drug Administration, Food Manufacturer, Genetically Modified Organism, GMO, High Fructose Corn Syrup, Labeling Claims, Regulation

Here We Go Again: Primary Jurisdiction and Deference to FDA

We have been here before:  in an attempt to capitalize on the ambiguities and uncertainties in product labeling, the plaintiffs’ bar focuses on phrases and ingredients for which there is little FDA guidance.  Last year, the industry saw many lawsuits relating to whether a food product which contained genetically modified organisms (GMOs) could be labeled as all natural. Some courts, such as in Cox v. Gruma Corp., No. 12:-cv-6502, 2013 WL 3828800 (N.D. Cal. July 11, 2013), concluded that the question was better answered by FDA and deferred to FDA’s expertise.  Other courts, however, declined to defer to FDA’s authority, reasoning that the issue of whether a label is misleading is within the courts’ experience. See In re Frito-Lay North America, Inc. All Natural Litigation, No. 12-MD-2413, 2013 WL 4647512 (E.D.N.Y. Aug. 29, 2013).   To the dismay of the courts and industry, on January 6, 2014, FDA issued a letter stating it would not decide whether a product containing GMOs could be labeled as “all natural.”

The industry is once again facing this trifecta–an onslaught of suits on a similar issue, ambiguities in FDA’s view on the subject, and a split in authority regarding whether to defer to FDA’s expertise. Once again attempting to exploit uncertainties in FDA’s regulations, plaintiffs are focusing on attacking products’ ingredient lists.  Currently in the spotlight is manufacturers’ use of the term “evaporated cane juice.”  Plaintiffs allege that food and beverage products listed as having evaporated cane juice as an ingredient are mislabeled because, per FDA and Food, Drug & Cosmetic Act regulations, an ingredient is to be listed by its “common or usual name.”  21 C.F.R. 101.4(a)(1). The plaintiffs claim evaporated cane juice is nothing more than sugar.

Attempting to find support from FDA, plaintiffs have referred to FDA’s 2009 draft guidance, entitled “Guidance for Industry: Ingredients Declared as Evaporated Cane Juice.”  The purpose of the draft guidance was to advise the industry of its view that evaporated can juice “is not the common or usual name of any type of sweetener, including dried cane syrup, and to assist manufacturers in appropriately labeling products that contain sweeteners derived from sugar cane syrup.”  It is clear from the face of that document, though, that it is intended to be only a draft, not to be implemented, and not final.

Similar to what the industry saw with respect to primary jurisdiction arguments made with “all natural” claims in 2013, courts are similarly split with respect to whether deference should be given to FDA regarding the use of “evaporated cane juice.”  Recently, on May 20, 2014, Judge Seeborg of the United States District Court for the Northern District of California acknowledged the split in authority within that district.  See Swearingen v. Yucatan Foods, L.P., No. C 13-3544 (N.D. Cal May 20, 2014).  Judge Seeborg noted that, in the last two months alone, there have been at least two cases which have been dismissed pursuant to the primary jurisdiction doctrine, two which have been stayed pursuant to the doctrine, and four which have rejected the application of this defense in evaporated cane juice cases.

This time, however, there is optimism that FDA will provide guidance on the issue.  This renewed sense of hope comes from FDA’s recent indication of its intent to provide formal guidance.  On March 4, 2014, FDA reopened its comment period for its 2009 draft guidance.  For a period of 60 days, FDA was accepting “additional data and information to better understand the basic nature and characterizing properties of the ingredient, the methods of producing it, and the differences between this ingredient and other sweeteners.”  Through the official notice in the Federal Register, 79 Fed. Reg. 12507 (Mar. 5, 2014), FDA acknowledged that it did not reach any final decision on the common or usual name for evaporated cane juice.  FDA further noted that “[a]fter reviewing the comments received, [it] intend[s] to revise the draft guidance, if appropriate, and issue it in final form.”

With dozens of evaporated cane juice cases pending around the country, FDA’s final guidance on the issue will have a significant impact on the food industry.  Those manufacturers who list evaporated cane juice as an ingredient will want to pay close attention to FDA’s anticipated guidance so that their product labeling conforms with FDA regulations and to help immunize themselves from one of these similar suits.  Those of us here at the Food Recall Monitor are watching this issue closely and will provide up-to-date analyses as it becomes available.

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Posted in Class Action, Evaporated Sugar Cane, False Advertising, Food and Drug Administration, Food Manufacturer, Genetically Modified Organism, GMO, Labeling Claims

Leading the Charge: Vermont Mandates GMO Labeling by 2016

While some states have passed GMO-labeling laws which contain a triggering-clause before they go into effect, Vermont has officially become the first state to pass a law, without any triggering-clause, requiring food manufacturers to label food as containing genetically modified organisms (“GMOs”). On May 8, 2014, Vermont Governor Peter Shumlin signed into law a bill which “proposes to provide that food is misbranded if it is entirely or partially produced with genetic engineering and it is not labeled as genetically engineered.”

The new labeling requirements go into effect on July 1, 2016. Food products require certain labels if they: 1) are offered for retail sale in Vermont; and 2) are entirely or partially produced with genetic engineering (which is a defined term under the new law). Vermont’s law requires the following labeling, depending on the nature of the food:

  • if the genetically-engineered food is a packaged raw agricultural commodity, the label must read “produced with genetic engineering”;
  • if the genetically-engineered food is a raw agricultural commodity which is not separately packaged, the retailer must post a label near the food which reads “produced with genetic engineering”;
  • if processed food contains any product or products of genetic engineering, the label must read “partially produced with genetic engineering”; “may be produced with genetic engineering”; or “produced with genetic engineering.”

The new law also prohibits food products produced, in whole or in part, from genetic engineering from being labeled or advertised as “natural,” “naturally made,” “naturally grown,” “all natural,” or any similar words which may mislead a consumer. The law does provide for several exemptions from its labeling requirements, including when the genetically engineered materials in processed foods account for less than 0.9 percent of the product’s total weight.

Challenges to the Vermont law are expected. In fact, the new law establishes a special fund to allow the state to pay costs or liabilities incurred in implementing and administrating the law. Food manufacturers and retailers, however, are admonished to closely examine these new labeling requirements. If challenges are unsuccessful, those who violate the law can face a fine up to $1,000 per day, per product, which is mislabeled.

If food manufacturers sell products in Vermont, it is encouraged that they examine their packages and ingredients to determine whether changes may have to be made before the July 1, 2016 deadline. Cozen O’Connor’s Food and Beverage Industry Team is available to guide manufacturers through the implementation of this new law.

Posted in "All Natural", Class Action, Drug and Cosmetic Act, Food Manufacturer, Genetically Modified Organism, GMO, High Fructose Corn Syrup, Labeling Claims, Preemption, Regulation

New York State Takes Another Step Toward GMO Food Labeling Requirement

New York State has come one step closer to joining other states seeking to require manufacturers to label foods that contain genetically modified organisms (GMOs). A-3525, a bill sponsored by New York Assemblywoman Linda Rosenthal (D), was first introduced in January 2013 and was approved by the state Assembly’s Committee on Consumer Affairs and Protection yesterday.

And although A-3525 and its companion bill, S-3835, have many hurdles to clear, other states have moved far more quickly in seeking to implement their own GMO labeling laws. For example, it is anticipated that Vermont Governor Peter Shumlin will sign a bill into law today, making Vermont the first state to require food manufacturers to label products containing GMOs. We anticipate that the law, which will not go into effect for another two years, will face significant legal opposition. Other states, such as Connecticut and Maine, have already passed their own labeling laws, however, they will not become effective until after a certain number of states pass similar laws.

These initiatives occur in the backdrop of a sea of class action lawsuits brought by consumers claiming that their “natural” products are mislabeled because they contain GMOs. To this point, the FDA has declined to define the term “natural” and whether a product containing GMOs may be labeled as such.

Opponents of state mandated food labeling requirements, such as the Coalition for Safe and Affordable Food, have consistently pointed to the safety and benefits of GMOs and argued for the need for a federal solution rather than a “50-state patchwork of GMO labeling laws [that] would mislead consumers, raise the price of groceries for American families and do nothing to ensure food safety.”http://coalitionforsafeaffordablefood.org/support-federal-solution.

Cozen O’Connor represents food producers in claims involving product labeling.

Posted in "All Natural", False Advertising, Genetically Modified Organism, GMO, Labeling Claims

Cozen O’Connor to Attend Snack Food Association’s Legislative Summit

http://www.foodrecallmonitor.com/files/2014/03/Corn1.jpgCozen O’Connor has been at the forefront of defending consumer class action lawsuits involving food and beverage labeling for years.  On April 9th and 10th we will be taking the fight from the courtroom to Capitol Hill at the Snack Food Association’s (SFA) Legislative Summit in Washington, D.C.  Please join us in supporting SFA’s position on the labeling of products containing GMO’s.

Posted in "All Natural", Class Action, Food and Drug Administration, Food Drug and Cosmetic Act, Food Manufacturer, Nutrition Labeling and Education Act
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Cozen O’Connor has a national team of attorneys experienced in handling food contamination and product recall coverage matters related to first-party, third-party and specialty policies. The firm also developed a Food, Beverage & Nutritional Products Industry Team to provide advice and counsel to a wide range of companies connected directly and indirectly to the food and beverage industry.
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