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New FDA Guidance on “Gluten Free” Claims

Following up on last year’s “gluten-free” labeling rule, the FDA has now published guidance to help industry interpret and apply the rule.  All food products claiming to be “gluten-free” must comply with the rule by August 5, 2014.  At its essence, according to the FDA, “gluten-free” means that the food does not contain an ingredient made from a gluten-containing grain unless that grain has been processed to remove the gluten and the remaining gluten in he ingredient does not exceed 20 parts per million.  Food containing unavoidable amounts of gluten, such as from cross-contact, must still be below the 20 ppm threshold to use the “gluten-free” claim.  The rule does not require testing of gluten levels, but a company using the claim is responsible for ensuring that its product meets the established threshold to avoid product being adulterated and/or misbranded.

Interestingly, FDA has specifically stated that the “gluten-free” claim can

Class Certification In Food Labeling Class Actions Gets Messy In The “Food Court.”

June 24, 2014


Three recent decisions from two judges in the Northern District of California provide us with a lot of information regarding where food labeling cases are headed in terms of class certification strategy. Notably, two of the decisions are from Judge Lucy Koh and granted class certification.  Of course, these losses from the defense perspective are disappointing, but it is important to understand them in order to develop effective defense strategies. The third decision is from Judge Charles Breyer and denied class certification. That opinion shows us strategies that work from the defense perspective. In addition, however, the opinion is also interesting because Judge Breyer recognizes the Northern District of California’s status as the epicenter of these cases and because he often expressly acknowledges that his reasoning differs from Judge Koh’s.  So bear with me as we go through three important class certification decisions before identifying some best practices

Consumer Reports’ Survey Confirms The Fight Against “All Natural” Is Well Underway

With 59 % of consumers checking labels, it is more important than ever for food producers and manufacturers to ensure their labels are what they say and to protect themselves while marketing their products.

 In February of this year, Digest covered the increase in “all natural” litigation, noting that labeling cases are filling court dockets. Consumer Reports’ recent study regarding customers’ interpretations of food and beverage labels shows that consumers are becoming increasingly concerned about issues such as GMO, organic, and country of origin labeling. The study focused on “natural” labels and according to Urvashi Rangan, the executive director of the Consumer Reports Food Safety and Sustainability Center, “[d]ue to overwhelming and ongoing consumer confusion around the ‘natural’ food label, we are launching a new campaign to kill the ‘natural’ label because our poll underscores that it is misleading, confusing, and

Supreme Court Issues Opinion in Pom Wonderful v. Coca Cola Allowing False Advertising Claims Against an FDCA-Compliant Label

Today, the Supreme Court issued an 8-0 opinion in Pom Wonderful LLC v. Coca-Cola Co., finding that compliance with the substantive advertising and labeling provisions of the Federal Food Drug and Cosmetic Act (“FDCA”) do not preclude a competitor from asserting a false advertising claim under section 43 of the Lanham Act.  This opinion opens the door for a company to assert Lanham Act claims against a competitor even where a product’s labeling and advertising otherwise meet the requirements of a prescriptive statute like the FDCA.

For more analysis on the opinion, see this alert.