Food and Beverage Claims Update – July 2022 | Shock, Hardy and Bacon LLP

Prosecutors from 22 states filed a message To the U.S. Food and Drug Administration (FDA) and USDA asserting that agencies “are not prioritizing enough a long-overdue public health problem to take strong action: children’s exposure to neurotoxic heavy metals (lead, arsenic, cadmium, and mercury) through foods.” Designed and marketed specifically for infants and young children. Under the leadership of New York Attorney General Letitia James, the group argues that the current plan to place limits on heavy metals, a plan closer to zero, has “long and vague timelines, which now extend into the middle of 2024 and beyond,” and is “already behind schedule.” .

As a result of this and other delays, US baby food manufacturers continue to largely self-regulate the amount of lead (and other toxic elements) in their products. In fact, it remains up to manufacturers to decide whether to test their products for these contaminants. With FDA action levels and product testing guidelines still missing, the lack of transparency about these toxic metals in certain foods brings unnecessary anxiety and confusion to American families with young children, who still face risks of exposure to heavy metals in foods marketed to them.” The message is that issuing immediate guidance to baby food manufacturers would be “the most appropriate way for the federal government to reduce contamination of toxic heavy metals in the foods it eats.” today infants and young children.”

The U.S. Court of Appeals for the D.C. Circuit upheld a lower court ruling that an appeal of the U.S. Food and Drug Administration’s (FDA) ban on interstate sales of unpasteurized butter was not merited. McAfee vs FDA, No. 21-5170 (DC Cir., accessed June 10, 2022). A lower court previously dismissed an appeal by a dairy farmer who argued that the FDA’s definition of butter did not require pasteurization, and thus the rule prohibiting the sale of unpasteurized butter under the Public Health Services Act (PHSA) brought about an “unlawful change in the legal butter regime” definition. The US Food and Drug Administration rejected a 2016 farmer’s petition to exclude butter from the rule requiring pasteurization of dairy products, finding that “banning raw butter helps prevent the spread of infectious diseases” and that “manufacturing controls are intended to ensure safety [] It may exist independently of any criteria of identity.”

The DC circuit was not convinced, and agreed that the farmer’s argument was “based on the false premise that the pasteurization rule alters the butter’s identity standard,” the district court decided. “This is incorrect: the pasteurization rule did not modify the legal standard of butter’s identity, either formally or functionally,” the Court of Appeal said. “Raw cream butter, although unpasteurized, is still ‘butter’ despite the FDA’s decision that selling it interstate would threaten public health.”

“[T]The legal definition in question here does not contain any mention of pasteurization or any other suggestion that undergoing this process prevents the product from qualifying as butter.”[The plaintiff] It may be true that unpasteurized butter has a distinct taste, texture, and other properties, but Congress has not spoken of these qualities as part of the butter’s legal identity standard. This legal provision does not refer to pasteurization nor does it require the qualities that pasteurized butter lacks. At least in this case, then, the Identity Standard Act does not take away the agency’s authority under the PHSA to ensure food safety.”

Two consumers have filed a supposed class action claiming that Barilla America Inc. Their pasta markets to incorrectly indicate that the products are made in Italy. Sinatro vs Barilla AM. a company, No. 22-3460 (ND Cal., filed June 11, 2022). The complaint asserts that consumers seek “original Italian pasta” because they “have a certain prestige and [are] It is generally seen as a high-quality product.” The plaintiffs argue that Barilla’s statement “Italy’s No. 1 brand of pasta”, which appears prominently on the packaging of its products, leads consumers to believe that the products are made in Italy rather than New York and Iowa. That, the company’s website describes it as a “family owned Italian food company” and asserts that “Italians know that the familiar blue box means quality, perfectly al dente pasta every time. That’s why Barilla has been an Italian favorite for over 140 years, and it’s still No. 1 pasta in Italy today.” For alleged violations of California’s unfair competition, false advertising and consumer protection laws, the plaintiff is seeking an injunction, damages, and attorneys’ fees.

A consumer has filed a supposed class action alleging that Danone North America Public Benefit Corp. misleads consumers about the nature of International Delight coffee creamers by labeling products as creamers rather than non-dairy creamers. English vs. Danone N. pub. Benefit Company., No. 22-5105 (SDNY, filed June 17, 2022). The plaintiff argues that the International Delight creamer “lacks cream or dairy ingredients that exceed a minimum amount of sodium caseinate” and “instead” replaces water and palm oil, the first and third ingredients, to reduce costs.” The complaint states that consumers “value cream of dairy ingredients for its nutritional purposes,” and the plaintiff claims she would not have purchased the product if she had not been misled by During packaging indicating the presence of dairy ingredients.For alleged violations of New York consumer protection laws, fraud, unjust enrichment, and breach of express warranty, the plaintiff seeks class certification, restitution, damages, and attorneys’ fees.

Presented by Clif Bar & Co. Settlement agreement to California federal court for approval to settle a class action claim that Cliff Bar is misleadingly marketed as healthy despite containing levels of sugar that exceed what consumers expect healthy foods to contain. Milan vs Cliff Bar & Co., No. 18-2354 (ND Cal., filed June 23, 2022). In addition to creating a $10.5 million fund, Clif will “make significant changes to the labeling and packaging of its original Clif Bars and Kid ZBars products,” according to the agreement. Changes include refraining from using ‘nutrition’, ‘nourishing’ and ‘baby feeding on the go’ on Clif Bar packages “as long as 10% or more of the [a bar’s] The calories come from added sugars.” The category includes customers who purchased Clif Bars between April 19, 2014 and June 23, 2022, and claimants will be divided into five with different award levels depending on the degrees of product use if the settlement agreement is approved by the court.

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