November 20, 2015
Authored by: Eric Schroeder and Christian Bromley
“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 was par-baked (frozen bread that is re-baked on-site) and fined Coles $2.5 million for its use of the term.
Claims that products are “fresh” can be problematic because “fresh” may have multiple meanings to consumers, and its meaning can vary based on context. Government guidance is not definitive either. Specifically, the applicable FDA regulation, 21 C.F.R. § 101.95, provides that “fresh” is acceptable on food labels “if the term does not suggest or imply that a food is unprocessed or unpreserved”; BUT it is prohibited if:
“(a) The term ‘fresh,’ when used on the label or in labeling of a food in a manner that suggests or implies that the food is unprocessed, means that the food is in its raw state and has not been frozen or subjected to any form of thermal processing or any other form of preservation . . .”
The regulation begs the question: what use of “fresh” is permissible so that it properly suggests or implies that a food is “unprocessed” or that it was not subjected to any “form of preservation”? The use of “fresh” becomes especially perilous when used in order to indicate recent preparation of the food to consumers. In this vein, the FDA does provide detailed guidance about frozen foods:
“(b) The terms ‘fresh frozen’ and ‘frozen fresh,’ when used on the label or in labeling of a food, mean that the food was quickly frozen while still fresh (i.e., the food had been recently harvested when frozen). Blanching of the food before freezing will not preclude use of the term ‘fresh frozen’ to describe the food. ‘Quickly frozen’ means frozen by a freezing system such as blast-freezing (sub-zero Fahrenheit temperature with fast moving air directed at the food) that ensures the food is frozen, even to the center of the food, quickly and that virtually no deterioration has taken place.”
21 CFR 101.95 (addressing use of “fresh”; “fresh frozen”; “frozen fresh”; and “quickly frozen”). The regulation is less clear in giving specific details on other permissible uses of “fresh” – such as when can “fresh” be safely used to describe when or how a food is made?
In our next post, we will analyze some of the recent “fresh” cases and the arguments presented by plaintiffs against the food industry’s use of the term.