Judges Clash on General Mills “Natural” Class Action – – In Three Paragraphs™

High profile class actions have been filed against General Mills and Quaker Oats whose oat products are labeled “100% Natural” when the product contains trace amounts of glyphosate (i.e. Monsanto Round Up) at levels posing no health risk. These class actions claim the presence of tiny amounts of synthetic glyphosate means the product isn’t “100% Natural,” and therefore, the product’s “100% natural” label misleads consumers. Mega Food defendants fight back on various grounds, including the claim that a product can contain synthetic Round Up herbicide and still be “100% natural.” This amazing self-contradictary argument was ruled on by 2 different judges 8 days apart and they gave completely opposite answers. We summarize this judicial phenomenon in the next two paragraphs.

Federal law empowers a judge to dismiss a case whenever he/she concludes it is “implausible” a defendant’s conduct caused any harm. In the last eight days, two courts have looked at the implausibility of identical class actions regarding the same “100% Natural Oats” label and reached completely opposite results:

1. Wolosyzn v. General Mills: Federal Court class action alleging General Mills’ Nature Valley Granola products that are labeled “made with 100% NATURAL whole grain OATS,” deceive the public because the products are 0.45 parts per million synthetic glyphosate. The lawsuit argues that anything containing detectible synthetics cannot be “100% natural,” and therefore, Nature Valley Granola is deceptively labeled. On July 12th, the judge dismissed the case on the ground that it “was not plausible” a reasonable consumer would believe “100% Natural” means zero synthetic components, and therefore, no one could reasonably be misled by the label. If the label can’t be misleading, there can be no public harm, and the case was dismissed.

2. Organic Consumers v. General Mills: Same defendant, same product, same label and same law as “Wolosyzn,” above, different judge, and on July 6th the Washington D.C. Superior Court reached exactly the opposite conclusion, ruling that it “is plausible” a reasonable consumer could believe “100% Natural whole grain Oats,” means zero synthetic components, and therefore, the Nature Valley label can be misleading and the class action can go forward.

The Food Lawyers® Analysis: You almost never see exactly the same case in two different jurisdictions reach exactly opposite results. There is usually some distinguishing difference between the two cases that lets lawyers “rationalize” the differing outcomes. But not this time. Here, all of the facts, products and law were identical. In one case, the judge ruled it was obvious people would not be misled; in the other case the judge ruled it was obvious people would be misled. In one case, the litigation was terminated and in the other case it was permitted to proceed. Two takeaways: (1) Food companies should get legal advice before using “Natural” on labeling (our firm is currently defending two food companies that tried “do it yourself” Natural labeling); (2) FDA has said they would define “Natural” — — they need to step in and do it because the Courts certainly can’t.

George Salmas

IN THREE PARAGRAPHS™ articles empower food business leaders with executive summary knowledge of issues affecting our industry. You may forward this article to others. To join our free subscription list, send us your name and e-mail address. To unsubscribe, send a reply e-mail: Unsubscribe. Food Lawyers® articles are informational and should only be implemented with legal counsel guidance. © 2017 The Food Lawyers®

Trump Executive Orders Affecting Food Industry – – In Three Paragraphs

The Food Lawyers®The Food Lawyers®Representing the Food and Beverage Industries Worldwide
Trump Orders Affecting Food Industry – – In Three Paragraphs™
President Trump signed 3 Executive Orders affecting the food industry.
January 20, 2017: “The Regulatory Freeze”  Federal agencies cannot issue new non-emergency regulations without approval from a Trump administration appointee.———————————————————–January 23, 2017: “The Hiring Freeze” Departing employees can be replaced; no other hiring permitted.  No vacant positions filled.  No new positions created.  ———————————————————–January 30, 2017: “Reducing Regulations and Regulatory Cost” Each Federal agency must repeal 2 regulations before issuing 1 new one.  More important is the sub-part that “… the total incremental cost of all new regulations, including [the two] repealed regulations … shall be no greater than zero.”  This means federal agencies cannot sacrifice two unused regulations to enact a new one. They must identify 2 active regulations whose repeal neutralizes any increased cost to industry from complying with the 1 new regulation.

The Food Lawyers® Analysis:  These three Presidential actions, intended to protect business from increased government compliance costs, have frozen regulatory law.  No FDA or USDA regulation can issue until 2 other regulations are repealed that offset the cost to industry of the 1 new regulation, and none of the 3 regulations can be acted upon until approved by someone deputized by HHS Secretary Price, who took office February 9th.  This creates whole new areas of responsibility in FDA and USDA to be carried out with existing staff because the Hiring Freeze prohibits creating new agency job positions.  This obviously brings halts all new FDA/USDA regulation.  The Food Lawyers® believes the renewed regulatory activity gating item will be Secretary Price announcing his choice of HHS priorities between (a) dismanteling Obamacare, and (b) everything else HHS does.  The Food Lawyers® full time Washington DC Lobbyist has been tasked to identify when that prioritization might be known inside the agencies.  We will publish a follow-up IN THREE PARAGRAPHS™ article when that intelligence is acquired.

George Salmas

IN THREE PARAGRAPHS™ articles empower food business leaders with executive summary knowledge of issues affecting our industry. You may forward this article to others.  To join our free subscription list, send us your name and e-mail address.  To unsubscribe, send a reply e-mail: Unsubscribe.  Food Lawyers® articles are informational and should only be implemented with legal counsel guidance.  © 2017 The Food Lawyers®

Prop 65 Breakthrough – In Three Paragraphs™

On March 17, 2015, the California Appellate Courts issued the most significant ruling in the history of Prop 65. We distill its essence to three paragraphs below.

Background: California Prop 65 requires foods and other products containing certain chemicals to be labeled Warning: This product contains a chemical known to the State of California to cause cancer, birth defects and other reproductive harm. Companies violating Prop 65 are subject to fines of up to $2,500 per day plus payment of opposing party’s attorneys fees.  The law provides “safe harbor” levels for some Prop 65 chemicals. If the product exposes consumers to less than the “safe harbor” amount of the chemical, the product is said to be “within the safe harbor” and no warning is required. A safe harbor for lead, for example, is 0.5 micrograms per day. Courts have universally interpreted this to mean that if consumers normally eat enough of the product to take in more than 0.5 micrograms of lead in any single day, Prop 65 applies and the warning (in red, above) is required.  This is true even if the product is eaten only once or twice per month.

The New Issue: When Beech Nut, Gerber and others were sued under Prop 65 for excessive lead in their juice products, they contended that the amount of lead eaten in a single day is irrelevant under Prop 65.  What matters, they said, is how much of the lead makes its way into the consumer’s bloodstream because that is what causes the harm that Prop 65 seeks to prevent.  The Ruling: On March 17, 2015, the Appellate Court agreed with Beech Nut, Gerber and food industry groups who filed briefs supporting their position.  The Court ruled that the proper measure of lead for purposes of determining safe harbor compliance is the amount in consumers’ blood averaged over a period of 14 to 30 days. This “average lead blood level,” is affected by how much a person eats of the product at a single sitting and how often they eat it.  The vast majority of food products are not eaten every day and a single serving is seldom enough to spike the average blood level to outside safe harbor levels. The Court’s ruling is a huge benefit to the food industry because it requires much more food to be eaten before a warning must be put on the product label. We will e-mail you the official Court Opinion upon request.

The Food Lawyers® Take Aways: Prop 65 applies only to goods sold in California. The Court’s ruling makes it easier for food companies to comply with Prop 65 by focusing on what really matters – – the quantity and frequency with which food is eaten. If your food product isn’t eaten every day (which is almost always the case), your Prop 65 compliance just got easier. The Court’s ruling applies to all Prop 65 chemicals, not just lead. Companies that have voluntarily put Prop 65 warnings on their products, or are considering doing so, should reexamine their situation.  Those that put warnings on packaging under a court approved Prop 65 settlement should evaluate making a motion to the court to reopen the matter.  Both strategies require consultation with technical experts to calculate blood absorption levels and legal counsel to guard against missteps that can thwart efforts to take advantage of the new tool the Court has handed to food companies doing business in California.

Best regards,

IN THREE PARAGRAPHS™ empowers food industry leaders with executive summary knowledge of issues affecting our industry. To join our subscription list, send us your name and e-mail address.  To unsubscribe, send a reply e-mail: Unsubscribe.  Food Lawyers® articles are informational and should only be implemented with attorney guidance.  © 2016 The Food Lawyers®

The New GMO Law – In Three Paragraphs™

Prior Law:  GMOs (Genetically Modified Organisms) are created by switching DNA between living things to grow food with desirable characteristics.  Example: GMO salmon receives a gene making it reach full size in 18 months rather than 3 years.  Consumers uncomfortable with eating gene splicing demand labels identifying GMO foods so they can avoid them.  Vermont GMO Law required most GMO foods sold in Vermont be labeled “Partially Produced with Genetic Engineering.”  Other states are preparing similar laws.  This would increase food industry costs.

New GMO Law: Effective when the President signs it this week, new Federal Law provides:

  1. State GMO labeling laws are void. This wipes out Vermont’s and other state GMO labeling laws.  Industry can ignore them.
  1. S. Department of Agriculture will draft new federal law’s content within 2 years. This means there are no GMO labeling requirements in U.S. for at least 2 years.
  1. GMO label disclosures due in 2 years can be a QR symbol, which many foods already have on label.  No need to have “GMO” anywhere on label.
  1. Additional technical provisions determined within 2 years.

 

The Food Lawyers® Analysis: Always remember the basic rule of life: FOLLOW THE MONEY.  Vermont’s simple and clear GMO law (and others like it) would cost industry big money, so the food industry teamed with federal politicians to make GMO disclosures more obscure than the tax code – – which is another example of follow the money.  GMO labeling law is nonexistent in U.S. for the next 2 years.  The Food Lawyers® will publish an update in 18 months or sooner as appropriate.

IN THREE PARAGRAPHS™ empowers food industry leaders with executive summary knowledge of issues affecting our industry. To join our subscription list, send us your name and e-mail address.  To unsubscribe, send a reply e-mail: Unsubscribe.  Food Lawyers® articles are informational and should only be implemented with attorney guidance.  © 2016 The Food Lawyers®