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End of the Road for Mike and Ike Slack Fill Litigation

In another victory for a candy manufacturer, a federal court in Missouri denied class certification earlier this month, effectively ending the plaintiff’s attempt to seek damages on a class-wide basis for all consumers of Hot Tamales and Mike and Ike candies.

The lawsuit, White v. Just Born, alleged that boxes of the candy were underfilled, leaving unusable empty space, known as “slack fill,” that deceived the consumer into thinking he was receiving more candy than was actually in the package.  The plaintiff sought certification of a Missouri class, and two multi-state unjust enrichment classes, on the theory that the actual value of the candy was less than the consumers paid for it.

The court declined to certify all three classes, ruling that proving class-wide violation of Missouri’s Merchandising Practices Act “will involve predominantly individual inquiries as to whether each class member purchased the candy.” Because most consumers purchase this type

FDA to Modernize Food Identity Standards, Starting With Dairy Products

August 3, 2018

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FDA Commissioner Scott Gottlieb has announced that the FDA is undertaking a comprehensive review of food standards of identity to ensure food labels are truthful and not misleading.  No doubt that for some this announcement is a long overdue response to rapidly evolving innovation in the food production sector that continues to challenge standards for truthful and non-misleading food labeling.

The FDA intends to focus first on standards of identity for dairy products.  In his statement, Gottlieb discusses the highly controversial topic regarding plant-based alternatives and the standard of identity for “milk,” e.g., soy, almond, etc.  These plant-based alternatives “are not the food that has been standardized under the name ‘milk’ and which has been known to the American public as ‘milk’ long before the 1938 Federal Food, Drug, and Cosmetic Act (FD&C Act) was established,” Gottlieb says.   He goes on to suggest that these plant-based products are creating

Coffee Defendants Likely To Seek Stay of Prop. 65 Action Following OEHHA’s Proposal to Exempt Coffee From Cancer Warning Requirement

July 9, 2018

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Defendants in the Proposition 65 case against Starbucks and numerous other coffee manufacturers and retailers have indicated that they intend to file a motion to stay that action following a proposal by the California agency that administers Prop. 65 to exempt coffee from the cancer warning requirement for certain types of exposures.

Judge Elihu Berle has issued an order in Council for Education and Research on Toxics v. Starbucks, et al., Los Angeles Superior Court Case No. BC435759, setting a hearing date on defendants’ contemplated request for a stay of the action for July 31 – the same day as the hearing on the plaintiff’s motion seeking a permanent injunction which could potentially result in defendants being required to sell their coffee products with a Prop. 65 warning in California.

On June 15, California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of proposed rulemaking to exempt coffee from

Battle Heats Up Concerning Regulatory Jurisdiction Over Cultured Meat Products

July 9, 2018

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The next wave of emerging agricultural biotechnology is set for its first regulatory showdown. Cell-cultured meat (“CCM”) allows your steak to be grown in a lab by replicating animal cells.  Some CCM products are even created using synthetic products derived from plants, insects, and other non-animal proteins.  No matter the type of culture used, CCM products are created without animals born, raised, and slaughtered in the traditional manner.  Advocates of this emerging industry have coined the term “clean meat,” but many in the conventional meat food industry feel it should not be called “meat” at all.

On February 9, 2018, the U.S. Cattlemen’s Association (“USCA”) filed a petition with the U.S. Department of Agriculture (“USDA”) requesting that USDA invoke its jurisdiction over CCM and mandate that such products not be allowed to use “meat” or “beef” in their labeling.  Indeed, the USCA asserts that such terms should be associated

WARNING: New Proposition 65 “Clear and Reasonable Warning” Requirements Effective August 30, 2018

Retailers and manufacturers should take steps now to ensure they are compliant with the new California Proposition 65 warning regulations that take effect on August 30, 2018.

Proposition 65 prohibits retailers and manufacturers from knowingly and intentionally exposing California consumers to a chemical known to the State of California to cause cancer or developmental or reproductive harm without first providing a “clear and reasonable warning.”  (Cal. Health & Safety Code § 25249.6.) The revised regulations provide examples of “safe harbor” warnings that are deemed to be clear and reasonable under the new amendments. Notably, the use of the specific “safe harbor” warnings included in the regulations is not actually required. Retailers and manufacturers can use any clear and reasonable warning; however, using the examples provided ensures that the warning is sufficient.

As we previously reported, amendments to the warning regulations were approved in August 2016. The 2016 and the more

FDA Extends Date for Compliance with New Nutrition Facts Label; Menu Labeling Rules Take Effect

May 18, 2018

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The FDA has extended the date for compliance with the Nutrition Facts and Supplement Facts Label and Serving Size final rules.  As we previously reported, the rules were finalized in May 2016 and initially set a general compliance date of July 26, 2018. Manufacturers with annual food sales of less than $10 million were given an additional year to comply.

The FDA has now issued a Federal Register notice extending the compliance dates by “approximately 1.5 years.”

The Nutrition Facts labeling rules:

  • Require an updated “Nutrition Facts” label with dual-column labeling for certain containers;
  • Require mandatory declarations for “added sugars” in grams and as a percentage of Daily Value (% DV);
  • Update the list of declared nutrients. Disclosure of vitamin D and potassium will be required. Calcium and iron will continue to be required. Vitamins A and C will no longer be required but can be included
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