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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

Not So “Fresh” Label and Advertising Claims Can Result In Litigation

“Fresh” is quickly becoming a not-so-fresh battleground for consumer-brought false advertising lawsuits as we see more and more actions challenging the use of “fresh” in advertising and labels for food and beverages.

Most recently, a federal district court in Illinois certified a class of consumers who claim that they were misled into believing that single-serving coffee cartridges contained “fresh” coffee, when in reality it was instant coffee. In another case filed this year in New Jersey, Whole Foods and Wegmans were sued for using the terms “baked fresh” or “fresh baked” in connection with their breads – the lawsuit claimed that these phrases indicated that the breads were made from scratch when instead the products were simply re-heated in the store (the suit was since dismissed on “standing” and injury issues).  And, an Australian court recently ruled that the Coles supermarkets could not use “Freshly Baked” to describe bread that

The Demise of Country of Origin Labeling (COOL)

The Demise of Country of Origin Labeling (COOL)

May 26, 2015

Authored by: Sara Ahmed and Brandon Neuschafer

Digest has been tracking the U.S. Country of Origin Labeling (“COOL”) rules that the WTO decided last year violate international fair trade rules.  It was the third time the WTO found COOL to be unfairly discriminatory.

In response to the threat of retaliation by Canada and Mexico, last week, the House Agricultural Committee voted to repeal a portion of COOL.  Under the bill, beef, pork, and chicken products will likely no longer state where the animals were born, slaughtered, and packaged.  The USDA had previously tried to no avail to revamp the rules upon the WTO’s prior rulings.

The U.S. National Farmers Union’s President, Roger Johnson, has been vocal in his feelings against the move to repeal portions of COOL and stated: “The House Agriculture Committee has succumbed to lobbying and scare tactics from foreign governments and multinational meatpackers and inserted itself prematurely into the WTO process by voting for a bill

A new circuit split regarding food labeling consumer fraud claims

March 18, 2015

Categories

A recent opinion from the Ninth Circuit may cause considerable confusion regarding what food manufacturers may put on their labels outside of the familiar Nutrition Facts Label. In fact, the opinion filed March 13, 2015, is at odds with earlier unpublished decisions from the Ninth and Third Circuits.

Reid v. Johnson & Johnson, No. 12-56726 (9th Cir. Mar. 13, 2015), is part of the wave of food labeling class actions making its way through the Ninth Circuit. That plaintiff alleged a host of consumer fraud claims based on the defendants’ Benecol vegetable oil-based spread. Benecol’s label prominently states that the product contains “No Trans Fat.” In truth, the product contains small amounts of trans fat, which the plaintiff contends is quite harmful to human health.

The difficulty that Reid presents is that FDA regulations require that the Nutrition Facts Label on Benecol state that

Food and Beverage Class Actions Are on the Rise

September 19, 2014

Categories

The latest Bryan Cave white paper on advertising class actions indicates an increase in class action filings affecting the food and beverage industry.  The paper, which analyzes class action complaint filings in the first two quarters of 2014, reveals the following:

  • Nearly 50% of the advertising class action complaints during the relevant time period were in the food and beverage (36%) or dietary supplement (12%) industries.  This number jumps to nearly 75% if other industries regulated by the Federal Food, Drug and Cosmetic Act are included. (Cosmetics accounted for 11%, pharmaceuticals for 8%, weight loss and pet care products for 4% each.)
  • Each quarter in 2014 represents a significant increase when compared to the last quarter of 2013.
  • Most of these food and beverage advertising class actions related to food labeling and nutrition content (26%), although “natural” claims still comprise a significant number of filings (18%).

The white

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

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