Food & Beverage Litigation Update | May 2018

by Shook, Hardy & Bacon L.L.P.

Shook, Hardy & Bacon L.L.P.


USDA Releases Proposed Bioengineered Ingredients Standard

The Agricultural Marketing Service (AMS) of the U.S. Department of Agriculture (USDA) has released the proposed National Bioengineered Food Disclosure Standard, which would establish “a mandatory uniform national standard for disclosure of information to consumers.” The proposal defines “bioengineered food” as food “that contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques” “for which the modification could not otherwise be obtained through conventional breeding or found in nature.” AMS seeks comments on “how to interpret the statutory definition of ‘bioengineering,’ and thus the scope of the regulatory definition of ‘bioengineered food,'” according to the announcement. “In particular, AMS is interested in any additional studies conducted on this issue, the cost of implementation under each policy, and whether certain policies describing the scope of foods subject to the disclosure standard would lower costs to affected entities.” Comments on the proposed rule must be received by July 3, 2018.


FDA Extends Compliance Dates For Updated Nutrition Labels

The U.S. Food and Drug Administration (FDA) has extended the compliance date for its changes to food nutrition labels. The extension applies to rules on (i) providing updated nutrition labeling on food; (ii) defining a single-serving container; (iii) requiring dual-column labeling for certain containers; (iv) updating, modifying and establishing certain reference amounts customarily consumed; and (v) amending the label serving size for breath mints. The compliance date for manufacturers with $10 million or more in annual food sales is January 1, 2020, and the compliance date for manufacturers with less than $10 million in annual food sales is January 1, 2021.


Hawaii To Ban Chlorpyrifos, Restrict Pesticide Use Near Schools

The Hawaii Legislature has passed a bill banning the use of pesticides containing chlorpyrifos and prohibiting restricted-use pesticides near schools. The legislation would prohibit the use of chlorpyrifos beginning January 1, 2019, but allow for the grant of temporary extensions through 2022. Hawaii’s Department of Agriculture will also be required to produce a summary of pesticide use by county. The bill has been forwarded to Governor David Ige for approval.


NAD Finds Perdue “Free Range,” “All-Veggie” Ads Misleading

The National Advertising Division (NAD) has recommended that Perdue Farms Inc. modify or discontinue broadcast and YouTube advertisements for the company’s Harvestland Organic chicken, finding the ads could mislead consumers into believing all Perdue chicken is organically raised. NAD found that the company’s “Free Range” and “All-Veggie Diet” ads featured “general brand references” to Perdue but only “momentary visual references to Harvestland Organic,” potentially leading consumers to conflate the two. The ads, which asserted that Perdue’s chickens are”happy,” also “clearly stated the general claim, ‘Perdue, raising more organic chickens than anyone in America,’” NAD noted. The board further cited a consumer-perception survey submitted by Perdue, finding that “the survey showed that substantially more respondents took away a message about the Perdue brand, generally.”

“NAD recommended that the advertiser discontinue the broadcast and YouTube commercials or modify them – including the YouTube description copy – to make clear that the advertising pertains to Perdue’s Harvestland Organic sub-brand, and not the Perdue brand as a whole,” according to a press release. “NAD also determined that if the commercials were appropriately modified, the advertiser’s use of ‘hashtag happy’ would not be misleading.”


USDA Proposes Amendment to Allowed Organic Substances in Livestock

The U.S. Department of Agriculture (USDA) has proposed amending the National List of Allowed and Prohibited Substances to approve elemental sulfur for use in organic livestock production as a topical parasiticide for fleas, ticks and mites. The proposal would also reclassify potassium acid tartrate from a non-agricultural substance to an agricultural substance and require use of the ingredient’s organic form when commercially available. Public comment on the proposed rule must be received by June 29, 2018.


FDA Changes Common Name for Crabmeat

The U.S. Food and Drug Administration (FDA) has announced a change to the common name “brown king crabmeat,” derived from Lithodes aequispinus. Effective May 3, 2018, the common and usual name for crabmeat previously described as “brown king crabmeat” has been changed to “golden king crabmeat.” The compliance date for the changes is January 1, 2020.



Advocacy Groups Seek to Compel FDA Ruling on Food Additive Petition

Eight advocacy groups have filed a joint petition for a writ of mandamus to compel the U.S. Food and Drug Administration (FDA) to rule on a 2016 citizen petition seeking recission of approval for several artificial flavorings used in food that have been linked to cancer. Breast Cancer Prevention v. FDA, No. 18-71260 (9th Cir., filed May 2, 2018). The groups, including Center for Environmental Health, Center for Food Safety, Center for Science in the Public Interest, Environmental Working Group and Natural Resources Defense Council, allege that FDA failed to issue a decision by the deadline of August 8, 2016, and request an order mandating FDA to issue a decision within 30 days.

The groups allege that after FDA approved the seven chemicals at issue—including benzophenone, ethyl acrylate and styrene—multiple U.S. and international agencies established that each of the chemicals induces cancer in humans or animals. Under the Food, Drug and Cosmetic Act, the groups assert, carcinogenic chemicals cannot lawfully be used to flavor foods. “Congress clearly told FDA that known carcinogens cannot be used as food additives. What more does FDA need? It is time for FDA to take seriously its responsibility to keep cancer-causing chemicals out of food,” an attorney for the groups said in a press release. “Consumers cannot identify every ingredient in processed food and they shouldn’t have to; we need FDA to do its job and protect our health and welfare.”


Challenge to Organic DHA Milk Preempted By OFPA

Ruling that the plaintiff’s claims are preempted by the Organic Foods Production Act (OFPA), a federal court in California has dismissed a putative class action alleging Danone North America’s Horizon Organic milk is not organic because it contains DHA. Brown v. Danone N. Am. LLC, No. 17-7325 (N.D. Cal., entered May 1, 2018). Noting that the Ninth Circuit has not considered whether the OFPA preempts state law challenges that “call into question whether organic products were properly certified as organic,” the court sided with decisions from the Eighth and Second Circuits holding that such challenges are preempted. “The labels clearly state that the milk is ‘organic’ and that the milk contains DHA, and the labels bear the United States Department of Agriculture (USDA) organic certification logo,” the court found. “The USDA database publicly shows that Horizon Organic milk with DHA is currently certified organic by the USDA, and has been so since 2013.” Accordingly, the court held, the plaintiff’s claims challenged the certification process itself. “There is simply no way to rule in [the plaintiff’s] favor without contradicting the certification decision, and, through it, the certification scheme that Congress enacted in the OFPA,” the court concluded. The court also ruled that the plaintiff could not allege the reliance and economic injury required to establish standing under California law because the product labels “fully disclosed the facts giving rise to [her] claims.”


Plaintiff Claims E. Coli Infection From Red Lobster’s Romaine

An Arizona woman has sued Red Lobster Hospitality alleging that she contracted E. coli from eating a salad at a Red Lobster in Phoenix. Styles v. Red Lobster Hospitality, LLC, No. 18-1361 (D. Ariz., filed May 1, 2018). The plaintiff alleged she ate the salad, which contained romaine lettuce, on March 23, 2018, and became ill around March 29, 2018. After she was hospitalized, she tested positive for E. coli O157:H7 bacteria, which has been linked to an outbreak of E. coli from romaine lettuce grown near Yuma, Arizona. Claiming breach of warranty, strict liability and negligence, the plaintiff seeks damages and attorney’s fees. A similar lawsuit was filed against Panera Bread Co. in April 2018.

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.

© Shook, Hardy & Bacon L.L.P. | Attorney Advertising

Written by:

Shook, Hardy & Bacon L.L.P.

Shook, Hardy & Bacon L.L.P. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.