Category Archives: Food and Nutrition

Second Circuit Affirms Expert Exclusion and Summary Judgment in KIND “All Natural” Lawsuit

In 2015, consumers sued the manufacturers of KIND products –first over the company’s use of the word “healthy” in describing its products, and then over the “All Natural/Non-GMO” claim on product packaging. The class action included claims for violation of several state laws. After class certification and discovery, the district court excluded the testimony of […]

FDA’s Delayed Action Plan for Baby Foods Won’t Delay Consumer Lawsuit

In 2023, a New York district court dismissed three consolidated class actions against Beech-Nut, a baby food manufacturer, alleging that its baby food products contained elevated levels of certain toxic metals. The district court had agreed with Beech-Nut that it should abstain from addressing the plaintiffs’ claims, instead deferring to the FDA under the doctrine […]

Essential Oils unsupported health claims are beyond “puffery,” 2nd Circuit holds

“Essential oils” have become very popular over the past few years, in part due to confusion that, in this context, “essential” does not mean “indispensable or necessary,” but rather refers to the means by which they are derived from plants. An essential oil company called Young Living had marketed its products as being “therapeutic-grade,” and […]

Ninth Circuit *Can* Believe It’s Not Butter…It’s a Spray

FDA regulations set out different “serving sizes” that should be used on nutrition labels for different categories of food. In the “Fats and Oils” category, regulations have different sizes for “Butter, margarine, oil, shortening,” “Butter replacement, Powder,” and “Spray types.” Consumers sued the makers of “I Can’t Believe It’s Not Butter! Spray” contending that the […]

Fifth Circuit: FDCA doesn’t preempt mislabeled cupcake claim

In 2018, C.S., a seven-year old with various food allergies, attended a family friend’s birthday party. The friend’s parent had purchased a cupcake at Whole Foods that had been labeled “vegan.” But that cupcake was not actually vegan, C.S.’s parents now allege, and C.S. suffered an allergic reaction, which has now led to “a number […]

NYC Council passes bill to curb plastic waste from takeout food

Gothamist reports: Restaurants and food delivery services will be barred from providing plastic knives, forks and condiment packets unless customers specifically request them, if a bill passed by the New York City Council Thursday goes into effect. The bill aims to curb single-use plastic waste that can’t be recycled. Approximately 1.1 million pounds of single-use […]

A Valediction: Long-time Consumer Advocate Richard Cleland Hangs Up His Spurs

After taking his sweet time to do so, my old and good friend Rich Cleland retired from the FTC at the end of 2022. I first met Rich about 40 years ago, when he ran the great Iowa AG Tom Miller’s Consumer Protection Division and I was working for the late great Texas AG Jim […]

Are there dangerous levels of heavy metals in your favorite chocolate bar?

Read this December 15, 2022 article in Consumer Reports, titled “Lead and Cadmium Could Be in Your Dark Chocolate,” which found, based on product testing, “dangerous heavy metals in chocolate from Hershey’s, Theo, Trader Joe’s and other popular brands.” (The article also found that other products are safer.) Two class actions have been filed against Trader Joe’s […]

Beyranevand Article: Regulating Inherently Subjective Food Labeling Claims

Laurie J. Beyranevand of Vermont has written Regulating Inherently Subjective Food Labeling Claims, 37 Environmental Law 543 (2017).  Here is the abstract: For many consumers, the modern food label serves as the sole source of information regarding any individual food product. While it may be considered informative in some respects, it is often enigmatic in others. The present […]