Food and Beverage News and Trends - June 2014

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This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.

  • Supreme Court speaks on deceptive labeling: Ruling in Pom Wonderful LLC v. The Coca Cola Company, the United States Supreme Court, in a unanimous (8-0) opinion authored by Justice Anthony Kennedy, held that competitors may bring Lanham Act claims for deceptive or misleading food and beverage labels that are regulated by the Federal Food, Drug, and Cosmetic Act. This decision could clear the way for litigation against food makers for deceptive labeling.
  • Two leading food trade groups ask FDA to go slow on sodium reduction. Is the FDA planning to set forth a new sodium reduction strategy? Amid rumors, two leading food industry associations are urging the agency not to try to reduce sodium consumption by setting sodium content targets for particular food categories, such as baked goods. The American Bakers Association expressed this concern in a comment posted May 30 on the FDA’s docket; the American Frozen Food Institute posted a similar comment June 2. Both groups contend scientific research does not support a policy initiative to significantly reduce sodium consumption.
  • Judge permits suit against Whole Foods over “all natural” claim to proceed. A federal judge in California has given the go-ahead for most claims in a lawsuit against Whole Foods Market based on the retailer’s use of the term “all natural” to proceed. The suit, filed in November 2013, accuses Whole Foods of misleadingly labeling baked goods as “all natural” when they contain the leavening agent sodium acid pyrophosphate (SAPP). In his ruling on June 2, US District Judge Vince Chhabria rejected Whole Foods’ defense that the claims were preempted by the federal Food, Drug and Cosmetic Act. It was plausible, he said, for a reasonable consumer to interpret the words “all natural” to exclude a synthetic compound such as SAPP.
  •  House panel votes to permit “opt-out” from school nutrition standards. First Lady Michelle Obama’s efforts to maintain nutrition standards for school lunches have been sidetracked by House Republicans with the support of the School Nutrition Association, a trade association for school cafeterias that originally backed the standards when they were established in 2010. On May 29, a House committee voted for a Republican-backed measure that would allow school districts to temporarily opt out of the standards. The First Lady denounced the opt-out idea as an endorsement of junk food in schools. The trade group says it is concerned about the nutrition program, which sets mandates to reduce sodium and increase servings of whole grains, fruits and vegetables.
  • Proposing a federal tax on sweetened beverages. Representative Rosa DeLauro (D-CT) said in a recorded video message at the National Soda Summit in Washington, DC on June 5 that she will soon introduce federal legislation to impose a tax on sugar-sweetened beverages. DeLauro said she hopes to introduce legislation in a matter of weeks and added that she sees the possible federal tax as one element in an anti-obesity program she plans to spearhead.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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