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

  • Members of Congress protest proposed changes in federal school meal program. On February 7, more than 70 Democratic members of the US House of Representatives wrote a letter to US Agriculture Secretary Sonny Perdue expressing dismay with changes to the nation’s school lunch program standards recently proposed by the department. According to the letter, the proposed new rules “would roll back a decade of improvements to the nutritional quality of school lunches and jeopardize the health of our nation’s youth.” It said that many studies have pointed to “the overwhelming success of strong nutrition standards for school meals.” The USDA is proposing to loosen the standards for school meals, a program that was championed by former First Lady Michelle Obama.
  • Milk industry leader testifies on behalf of Dairy Pride Act. On January 29, Tom Balmer, the executive director of the National Milk Producers Federation, testified before a congressional committee that it is time for Congress to take action on the Dairy Pride Act. The bill would make it unlawful for companies to use terms such as “milk” for products that do not come from dairy animals. Such products would be termed “misbranded” under federal law. “Plant-based industrial food processors typically go to great lengths to try to replicate real milk by grinding seeds, nuts or grains into a powder, adding water, whiteners, sweeteners, stabilizers and emulsifiers, possibly blending in some vitamins and minerals, and then marketing the resulting concoction using dairy terms. By calling these products ‘milk’ they are clearly seeking to trade on the health halo of real milk,” Balmer said.
  • Beef association releases survey on consumer perception of plant-based meats. The National Cattlemen’s Beef Association on February 7 released the results of a survey that, the group says, indicates a substantial number of consumers are confused by exactly what ingredients are found in plant-based burgers and similar foods. The online survey of more than 1,800 consumers showed that less than half of the respondents understood that the term “plant-based beef” was intended to describe an entirely vegetarian or vegan food product. One major source of confusion, the NCBA said, was that about one-third of the surveyed consumers believed that plant-based meat products contained at least some real beef. Commenting on the survey, NCBA President Jennifer Houston said, “Many of these fake-meat products purposely use graphics and words that trade on beef’s good name, and it needs to stop immediately.”
  • Plant-based company sues California regulators on free-speech grounds. On February 6, Miyoko’s Kitchen, a plant-based food company located in California, sued the state in the US District Court for the Northern District of California. In the complaint, the company said that food labeling regulations promulgated by the California Department of Food and Agriculture and by its Milk and Dairy Food Safety Branch violate the company's First Amendment rights. Last December, those state regulators sent a letter to the company telling it to stop using the phrase “100% cruelty and animal free” on its labels and on its website and to stop using dairy terms such as “butter” for its vegan plant butter. The letter also told the company to remove the image of a woman hugging a cow from its website. The lawsuit was filed on behalf of the company by the Animal Legal Defense Fund. The fund’s executive director, Stephen Wells, said in a statement that the government “has no business censoring humane companies from accurately describing their animal-friendly products.”
  • Are these gummy fruit snacks really “all natural”? A new class action complaint is challenging the Arizona Beverage Co.’s advertising that its gummy fruit snacks are “all natural.” The lawsuit was filed by Christopher Silva, a consumer, who says he bought the fruit snacks believing them to contain no synthetic ingredients, when in fact they do contain several ingredients that he said were synthetic. Among them are citric acid, gelatin, ascorbic acid, dextrose, glucose syrup, modified food starch and modified corn starch. In his lawsuit, he contends that these cannot be considered all natural because they are formulated or manufactured “by a chemical process or by a process that chemically changes a substance extracted from naturally occurring plants, animals, or mineral sources.” The case was filed in the US District Court for the Eastern District of New York.
  • Iced-tea maker is target of complaint over its sugar content. A complaint filed as a putative class action February 9 in the US District Court for the Eastern District of New York asserts that although Tipp Distributors, Inc., the maker of the Steaz brand of iced tea beverages, claims in effect that the drinks have a low sugar content, they actually contain “significant amounts” of added sugar. “When consumers observe the Products’ front-label representation of a ‘Lightly Sweetened’ claim, they will be misled to believe the Products are lower in sugar and added sugar than they are. Far from being ‘lightly sweetened’ and low in sugar or low in added sugar, sugar is the second most predominant ingredient in the Product by weight,” the plaintiffs wrote in their complaint. Federal law does not permit companies to make “low sugar” claims, and the complaint asserts that the term “lightly sweetened” is the equivalent of such a claim.
  • Activist argues against beverage tax in the District of Columbia. In a January 31 op-ed article in, Tom Schatz, president of Citizens Against Government Waste, urged the Washington, DC Council not to adopt a proposed soda tax of 1.5 cents per ounce of beverage. The author contended that the funds from the tax, which are earmarked under the pending tax bill to improve the health of residents of the District, might in fact not end up being used for that purpose. In addition, he said that studies of similar taxes in Philadelphia and other localities have failed to show that they reduce consumption of unhealthful beverages. Finally, the author said, “A soda tax does not prevent people from drinking what they want. Individuals purchase these drinks elsewhere, which hurts the local economy. As a regressive tax, it disproportionately impacts the low-income families the measure purports to help.” He added, “The last thing residents need is a massive cash grab through an unfair, unworkable and ineffective beverage tax.”
  • Lawsuit against Bob Evans over mashed potatoes is dismissed. On February 13, US District Judge Allyne Ross of the Southern District of New York ruled that advertising by Bob Evans Restaurants saying its mashed potatoes contained real butter was not misleading since the potatoes did contain butter. The judge therefore dismissed a class action that had been filed against the company. The restaurant chain said that its mashed potatoes also contained canola oil, but it argued that a reasonable consumer would not conclude from the ads that they contained only butter and not another oil or fat. The judge agreed, noting that the plaintiffs themselves conceded that the potatoes contained butter, and in a higher proportion than canola oil.

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