USA: Appeals court rejects challenge to California’s ban on foie gras

 

The US Court of Appeals for the Ninth Circuit on May 6 rejected a challenge to California’s ban on foie gras. A three-judge panel of the court ruled by a 2-1 margin that the foie gras ban was not pre-empted by federal law and did not violate the dormant Commerce Clause of the US Constitution. The statute provides that a product may not be sold in California “if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” The panel found that the plaintiffs in the case had not shown any cognizable burden on interstate commerce resulting from the law and also found that the state has an interest in public health and in preventing animal cruelty. The panel also upheld the district court’s ruling that the ban should be read as applying to sales in the state but not to online, phone and fax sales from out of state to California buyers.

Source: https://www.dlapiper.com/en/us/insights/publications/2022/05/food-beverage-news-trends-may-19/

USDA Solicits Public Comment on Labeling Meat and Poultry Products Derived from Animal Cells

 

On September 2, 2021, the U.S. Department of Agriculture’s Food Safety and Inspection Service (“FSIS”) published an advanced notice of proposed rulemaking to solicit comments from the public regarding the labeling of meat and poultry products made using cultured cells derived from animals. FSIS stated that it would use those comments to make further regulatory requirements.

FSIS also asked for economic data and consumer research to help increase its understanding of the animal cell culture technology industry and related issues regarding labeling and consumer perceptions of food made using this technology.

FSIS asked for public comment on the following fourteen questions:

1. Should the product name of a meat or poultry product comprised of or containing cultured animal cells differentiate the product from slaughtered meat or poultry by informing consumers the product was made using animal cell culture technology? If yes, what criteria should the agency consider or use to differentiate the products? If no, why not?
2. What term(s), if any, should be in the product name of a food comprised of or containing cultured animal cells to convey the nature or source of the food to consumers? (e.g., "cell-cultured" or "cell cultivated.")
   1. How do these terms inform consumers of the nature or source of the product?
   2. What are the benefits or costs to industry and consumers associated with these terms?
   3. If meat or poultry products comprised of or containing cultured animal cells were to be labeled with the term "culture" or "cultured" in their product names or standards of identity (e.g., "cell culture[d]"), would labeling differentiation be necessary to distinguish these products from other types of foods where the term "culture" or "cultured" is used (such as "cultured celery powder")?
3. If a meat or poultry product were comprised of both slaughtered meat or poultry and cultured animal cells, what unique labeling requirements, if any, should be required for such products?
4. What term(s), if used in the product name of a food comprised of or containing cultured animal cells, would be potentially false or misleading to consumers? For each term, please provide your reasoning.
5. What term(s), if used in the product name of a food comprised of or containing cultured animal cells, would potentially have a negative impact on industry or consumers? For each term, please provide your reasoning.
6. Should names for slaughtered meat and poultry products established by common usage (e.g., Pork Loin), statute or regulation be included in the names or standards of identity of such products derived from cultured animal cells?
   1. If so, is additional qualifying language necessary? What qualifying terms or phrases would be appropriate?
   2. Do these names, with or without qualifying language, clearly distinguish foods comprised of or containing cultured animal cells from slaughtered products?
7. Should terms that specify the form of meat or poultry products (such as "fillet", “patty” or "steak") be allowed to be included in or to accompany the name or standard of identity of foods comprised of or containing cultured animal cells?
   1. Under what circumstances should these terms be used?
   2. What information would these terms convey to consumers?
8. Should FSIS establish a regulatory standard of identity under its authorities in the FMIA and the PPIA (21 U.S.C. 607(c) and 457(b)) for foods comprised of or containing cultured animal cells?
   1. If so, what would be the standard and how might compliance with the standard be verified?
   2. If so, what would be the labeling terminology for products that do and do not meet a formal standard of identity? What would be the anticipated categories of use? For example, mechanically separated poultry that does not meet the standards of identity outlined in 9 CFR 381.173 may be diverted for production in broths and bases, as well as reaction flavors, i.e., flavors produced by the heating of the protein source in the presence of a reducing sugar.
   3. If so, what are the benefits and costs to industry if the standard of identity is established? Please provide quantitative and qualitative feedback in your response and explain the basis of any quantitative estimates.
   4. If so, what are the consumer benefits and costs to the standard of identity recommended?
9. What nutritional, organoleptic (e.g., appearance, odor, taste), biological, chemical or other characteristics, material to consumers’ purchasing and consumption decisions, vary between slaughtered meat or poultry products and those comprised of or containing cultured animal cells?
10. Should any of the definitions for “meat”, “meat byproduct” or “meat food product” found in 9 CFR 301.2 be amended to specifically include or exclude foods comprised of or containing cultured animal cells?
11. Should any of the definitions for “poultry product” or “poultry food product” found in 9 CFR 381.1 be amended to specifically include or exclude foods comprised of or containing cultured animal cells?
12. Should FSIS-regulated broths, bases and reaction flavors produced from cultured animal cells be required to declare the source material in the product name, ingredient sublisting or elsewhere on the label?
13. Should the presence of cultured animal cells in further processed products regulated by FSIS, such as a lasagna made with cell-cultured beef cells as an ingredient, be qualified on the product label? If so, how should this be qualified?
14. What label claims are likely to appear on FSIS-regulated products comprised of or containing cultured animal cells? Should FSIS develop new regulations or guidance on such claims to ensure they are neither false nor misleading?

See also: https://www.usda.gov/media/press-releases/2021/09/02/usda-seeks-comments-labeling-meat-and-poultry-products-derived

Reminder: Opportunity to comment on draft “healthy” symbols for FDA’s planned consumer research

 The U.S. Food and Drug Administration (FDA) has released draft options for a new voluntary “healthy” symbol for packaged foods to depict the nutrient content claim.

Draft “healthy” symbols for planned consumer research

As previously noted, on 7 May 2021 the FDA issued a notice that it intends to conduct preliminary consumer research on symbols that could be used voluntarily to convey that the nutrient content of a packaged food is “healthy.”[1] One of the appendices to the notice includes draft “healthy” symbols for this planned testing, which are copied below.  

In addition to the colored symbols pictured above, the FDA also plans to test black and white versions. The FDA also intends to test a “no information” condition where no explanation of the symbol is provided, as well as a Uniform Resource Locator (URL) condition, in which a URL is tested alongside the symbol, presumably to provide additional information explaining the meaning of the symbol.

These symbols would be included voluntarily on packaged foods that meet the “healthy” criteria that the FDA is in the process of updating as part of the agency’s Nutrition Innovation Strategy. Although the notice itself is a fairly standard procedural notice, it provides a good opportunity to comment on the draft symbols as well as the limited details the FDA has released regarding the planned consumer research. Comments are due Tuesday, 6 July 2021.

Next steps    

We will continue to monitor developments related to nutrient content claims, the voluntary “healthy” symbols, and the Nutrition Innovation Strategy.

References 

1    Hogan Lovells, FDA to test voluntary “healthy” symbols through consumer research (7 May 2021) available at: https://www.engage.hoganlovells.com/knowledgeservices/news/fda-to-test-voluntary-healthy-symbols-through-consumer-research.

WRITTEN BY:

Hogan Lovells

[View source.]

Anneke Baran Altieri

Veronica Colas

Martin Hahn

Joseph Levitt

USA - FDA Releases Plan for Reducing Infant Exposure to Heavy Metals

The U.S. Food and Drug Administration (FDA) has released “Closer to Zero,” its action plan for reducing infants’ exposure to heavy metals following a Congressional report on toxic elements in baby foods. “Although the FDA’s testing shows that children are not at an immediate health risk from exposure to toxic elements at the levels found in foods, we are starting the plan’s work immediately, with both short- and long-term goals for achieving continued improvements in reducing levels of toxic elements in these foods over time,” the agency states. Under the plan, FDA will (i) “evaluate the scientific basis for action levels,” (ii) “propose action levels,” (iii) “consult with stakeholders on proposed action levels,” and then (iv) “finalize action levels.” The agency will then “establish a timeframe for assessing industry’s progress toward meeting the action levels and recommence the cycle to determine if the scientific data support efforts to further adjust the action levels downward.”

“We recognize that Americans want zero toxic elements in the foods eaten by their babies and young children,” the FDA statement says. “In reality, because these elements occur in our air, water and soil, there are limits to how low these levels can be. The FDA’s goal, therefore, is to reduce the levels of arsenic, lead, cadmium and mercury in these foods to the greatest extent possible. We are also sensitive to the fact that requiring levels that are not currently feasible could result in significant reductions in the availability of nutritious, affordable foods that many families rely on for their children. Our plan, therefore, outlines a multi-phase, science-based, iterative approach to achieving our goal of getting levels of toxic elements in foods closer to zero over time.”

Mark Anstoetter et al. - Shook, Hardy & Bacon L.L.P.

USA: FDA Announces Investigation into Real Water

 

The U.S. Food and Drug Administration (FDA) has announced an investigation into Real Water alkaline water, which is allegedly the link between several cases of acute non-viral hepatitis. The investigation comes amid the filing of several lawsuits alleging harm to consumers of the water, including children. The agency announced that Real Water was not cooperating with the investigation because it failed to provide records or access to facilities.

“The FDA is committed to protecting the health of Americans and is especially concerned when there is a food safety issue impacting our youngest, and some of the most vulnerable in the population – infants and young children,” a press release stated. “Upon learning about reports of acute non-viral hepatitis in Nevada, impacting five young children, the FDA quickly activated a team to further investigate. We are working closely with the CDC, state and local partners to complete our investigation and monitor for any additional illnesses.”

By Mark Anstoetter et al. [Shook, Hardy & Bacon L.L.P.].

In brief: food and animal safety in USA

 

Food safety, certification programmes, animal safety and disease

Livestock legislation

Primary processors in the United States are subject to legislation governing their methods of treatment and slaughter of live animals. The Humane Methods of Slaughter Act (HMSA) governs the slaughter process itself. The HMSA enjoys some pre-emptive power over the states and is enforced by the US Department of Agriculture (USDA). Importantly, the HMSA does not apply to poultry slaughter.

Another principal piece of legislation in this area is the Federal Meat Inspection Act (FMIA). The FMIA confers broad authority onto the Food Safety and Inspection Service (FSIS), a federal agency within the USDA, to implement and enforce thorough inspection criteria for food processors. The FMIA applies to slaughterhouses that transport their products across state lines. A supplemental piece of legislation, the Wholesome Meat Act, requires all states to have intrastate inspection programmes ‘equal to’ that of the federal government. These laws work in tandem to create a national scheme of health and safety governance applicable to primary processors of most live animals. Relatedly, the Poultry Products Inspection Act (PPIA) imposes safe and humane slaughter and processing of poultry products.

Food safety regime

Different statutes regulate the safety and labelling of meat and poultry at the federal level. The FMIA and the PPIA regulate the production, safety and labelling of meat and poultry products, respectively, with few exceptions. Under the FMIA and the PPIA, and their implementing regulations and policy statements, the FSIS broadly regulates nearly all aspects of the harvest, processing and labelling of meat, poultry and certain egg products regulated under the Egg Products Inspection Act (EPIA). 

Two important concepts run through these regulatory schemes: adulteration and misbranding. Adulteration is the standard for food purity and safety, broadly defining which food products meet regulatory requirements and are safe for consumption. Misbranding relates to whether the labelling of a food meets regulatory requirements. The FSIS regulations, policy memoranda and the Food Standards and Labelling Policy Book provide additional labelling requirements and guidance for meat and poultry products.

Most food products are regulated under the Federal Food, Drug and Cosmetic Act (FDCA) administered by the Food and Drug Administration (FDA). Whole eggs in shells are regulated under the FDCA but other egg products are regulated under the EPIA, administered by the FSIS. Animal feed and pet food are also regulated under the FDCA as are dietary supplements, medical foods and infant formula, but with some additional requirements. Alcohol products are almost entirely regulated under the Federal Alcohol Administration Act, administered by the US Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau. Organic food products are regulated under the Organic Food Production Act, administered by USDA.

Safety enforcement

The Food Safety Modernization Act (FSMA) imposes numerous food safety requirements on food companies, including a mandate that companies that manufacture, pack or hold food develop written food safety plans. These food safety plans include, among other things, a hazard analysis to identify reasonably foreseeable hazards to humans or animals and controls to minimise or prevent those hazards.

The FSMA arms the FDA with enhanced monitoring and enforcement powers, including the authority to issue a mandatory recall when there is ‘reasonable probability’ that a food is adulterated or misbranded and will cause serious adverse health consequences or death to humans or animals. The FDA rarely uses its recall power, instead using public announcements and other means to encourage a company to issue a voluntary recall. The FDA can suspend a facility’s registration, seize and detain food, and impose both civil and criminal liability for individuals or corporations that sell adulterated or misbranded products.

Regarding meat, poultry and eggs products, the FSIS has similar legal authority to take administrative, civil or criminal enforcement actions against individuals and companies for violations of the FMIA, the PPIS and the EPIA. These actions can include detention of products when there are insanitary conditions at a facility or inhumane slaughter or handling. Recalls are initiated by the manufacturer or distributor. At times, the FSIS recommends a company initiate a recall, but all recalls are voluntary. If a company refuses to initiate a voluntary recall, the FSIS has the legal authority to detain and seize those products in commerce. The FSIS can also stop facility production, seize product, file an injunction and seek civil or criminal penalties.

 

Product certification 

 

In the United States, third-party certifying organisations establish adherence to certain voluntary standards, such as organic certification and labelling and labelling products as ‘non-GMO’. Organic certification verifies that the company complies with USDA organic regulations and allows certified companies to label, market and sell products as organic.

Bioengineered foods are regulated by the USDA under the National Bioengineered Food Disclosure Standard of 2016. All bioengineered foods or foods containing bioengineered food ingredients must bear specific labelling by 1 January 2022. The bioengineering disclosure requirement does not address foods that claim to be ‘non-GMO’; this is a claim usually made with certification from a third party that the food is ‘non-GMO project verified’.

 

Food labelling requirements

Federal jurisdiction over food labelling is divided between two key agencies: the FDA and the USDA. The FDA governs most foods sold in the United States under the FDCA. The FDCA requires five mandatory label elements: product name; net contents; nutrition fact panel; ingredient list; and name and place of the manufacturer or distributor. Health claims (statements regarding how foods affect the ‘structure and function’ of the human body) and claims such as ‘light’, ‘fewer calories’, ‘less fat’, ‘fresh’, ‘bioengineered’, ‘pasteurized’, ‘organic’, ‘allergens’ and others are found in FDA regulations, guidance documents and compliance policy guides. In many cases, these regulations establish minute details of how text may appear on a label, including font size and placement.

Labelling of meat, poultry and certain egg products is regulated by the USDA’s FSIS. In contrast to products regulated by the FDA, labels for these products must be preapproved by the FSIS.

Labelling compliance is important; if the label fails to meet regulatory standards, the food may be characterised as ‘misbranded’ and subject to government enforcement actions ranging from warning letters to product recalls to product seizures. Misdemeanour or felony criminal penalties are also possible. However, perhaps the most discussed enforcement development in the last decade has been the growing trend of consumer class action lawsuits seeking substantial damages for labelling transgressions, both real and perceived.

Food animal legislation

 

The FSMA establishes robust, proactive food safety measures across the spectrum of industries that market food products to the public. It imposes safety and control requirements on the production of animal food, including food provided to food-producing animals, such as cattle and poultry.

A framework of federal statutory, regulatory and decisional law governs the transportation of food animals. For example, food animals’ health is protected during transportation by the ‘28 Hour Law’. Additionally, state negligence law often sets the standard for protecting food animals from exposure to contagions and other disease-causing stimuli.

Animal movement restrictions

Transportation of animals within the United States is subject to restrictions found at Title 49 of the US Code, section 80502 (West 2019). Known as the ‘28 Hour Law’, this federal statute prohibits the ‘confine[ment of] animals in a vehicle or vessel for more than 28 consecutive hours without unloading the animals for feeding, water, and rest’. The statute applies to:

• rail carriers, express carriers and common carriers (except by air or water);
• receivers, trustees or lessees of a carrier; and
• owners or masters of vessels or vehicles transporting the animals.

 

There are exceptions, as follows:

• the confinement period may be extended by an additional eight hours in two circumstances:
  • when the transported animals are sheep and the 28-hour maximum concludes at night; and
  • if the owner or custodian of the animals makes a separate request in writing for a time extension;
• any animal may be confined in excess of 28 hours if unloading the animal cannot be accomplished safely in light of ‘accidental or unavoidable causes that could not have been anticipated or avoided when being careful’; and
• the confinement period is inapplicable where the animals are transported by means that allow for food, water, space and an opportunity for rest.

 

Maximised confinement periods must be followed by five consecutive hours of release when food, water and rest are provided. Violations of the 28 Hour Law expose those bound by it to civil penalties ranging from US$100–US$500.

The Safe Air Travel for Animals Act governs the transportation of pets and other live animals through air travel.

Slaughter legislation

The regulations are primarily codified under Title 9 of the Code of Federal Regulations. The USDA’s virtual ‘National Agricultural Library’ houses pertinent statutory and regulatory law and explanatory secondary sources in a retrievable format. The Humane Methods of Slaughter Act, FSIS regulations and training materials and Government Accountability Office enforcement reports are accessible through the USDA’s library.

Pest control requirements

In the United States, the Environmental Protection Agency (EPA) regulates pesticides, with authority derived from the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). FIFRA operates as a registration statute and requires EPA approval and registration of pesticides prior to their sale, distribution or use in the United States. A party seeking to register a pesticide must submit certain categories of testing data to the EPA. In determining whether to register a pesticide, the EPA engages in a cost-benefit analysis of the pesticide’s intended uses, weighing the potential adverse effects on human health and the environment against the benefits of the intended use. Additionally, states may regulate the sale and use of pesticides if they do not allow a sale or use that is prohibited by FIFRA. States cannot impose labelling requirements in addition to or different from those required under FIFRA.

The FDCA will apply if pesticides are applied to food or food crops. Under the FDCA, as amended by the Food Quality Protection Act, the EPA must establish a maximum safe level, or tolerance, of pesticide residue depending on the type of crop. Statutes such as the Endangered Species Act, the Clean Water Act and the Safe Drinking Water Act apply generally to a broader category of chemical use and storage, but certain pesticides may be addressed specifically.

Source: Faegre Drinker Biddle & Reath LLP - Breia L. Schleuss, Jacob D. Bylund, John P. Mandler and Sarah L. Brew

FDA Announces Increased Inspections and Enforcement Actions, Additional Guidance to Reduce Toxic Elements in Food for Babies and Young Children

 

On March 5, 2021, FDA issued a public statement announcing regulatory actions to reduce toxic elements — with a particular focus on arsenic, lead, cadmium and mercury — in food for babies and young children. FDA cited the risk heavy metals pose to infant and young children’s neurological development. The Agency indicated that it would take the following actions:

• Issue guidance to develop action levels for contaminants such as heavy metals.
• Increase inspections of facilities to ensure compliance.
• Increase testing of foods for babies and young children.
• Collaborate with academia, industry and government to support research of additional safety information on toxic elements in food for babies and young children and additional steps that industry can take to further reduce levels.

Background

In 2017, FDA established the Toxic Elements Working Group to reduce exposure to toxic elements (i.e., chemical hazards including heavy metals, mycotoxins and pesticides) in food, cosmetics and dietary supplements. Since that time, FDA has established a limited number of action levels for certain heavy metals listed in the table below.

Element/Product	Action Level
Inorganic arsenic in infant rice cereal	100 ppb
Inorganic arsenic in apple juice	10 ppb*
Lead in candy products for small children	100 ppb (0.1 ppm)**
Lead in juices	50 ppb**
*FDA Draft Guidance **Recommended Threshold

A February 4, 2020, report issued by U.S. House of Representatives Committee on Oversight and Reform Subcommittee on Economic and Consumer Policy examined heavy metal levels in baby food products (the Report). The Report found high levels of heavy metals (inorganic arsenic, lead, cadmium and mercury) in the final products. The Report concluded baby foods are “tainted” with toxic heavy metals and criticized FDA’s lack of regulatory action on ensuring the safety of baby food.

The Report recommended FDA adopt the following actions:

• Mandatory testing of finished products
• Labeling: Require disclosure of heavy metal levels on food labels
• Guidance: Establish maximum heavy metal levels across all baby food products to protect against neurological effects

In addition, the Report also recommended that the industry voluntarily find substitute ingredients or phase out products that contain ingredients that frequently test high in toxic heavy metals, such as rice.

In conjunction with FDA’s public statement, FDA issued a letter to industry on March 5, 2021, reminding baby and toddler food manufacturers and processors of the legal requirement to evaluate chemical hazards under FSMA’s Hazard Analysis and Preventive Control Rule (HARPC) and other hazard analyses as required by 21 CFR Parts 120 and 123 where applicable. To emphasize this enforcement priority, the letter cited a January 15, 2021, consent decree issued by the U.S. District Court for the Eastern District of Washington to Valley Processing, Inc. This order required the company to stop distributing adulterated juice products that contained inorganic arsenic and patulin toxins at levels that can pose health risks to consumers.

Implications for Industry: Toxic Elements Such as Heavy Metals are Potential Adulterants

FDA’s public statement and letter to industry clearly show that toxic elements in foods for babies and young children are an enforcement priority. Manufacturers and processors of these products should evaluate their supply chain and require Certificates of Analysis from ingredient suppliers demonstrating an absence of heavy metals and other chemicals of concern. In addition, it is advisable to reexamine HARPC and other hazard analyses to identify steps to reduce chemical hazards as well as conduct periodic final product testing.

"Food & Beverage Litigation Update - January 2021" by Mark Anstoetter et al.

 

USDA Releases Final Rule on Hemp Cultivation

The U.S. Department of Agriculture has released its final rule governing the cultivation of hemp, which will take effect March 22, 2021. The draft rule would have required hemp to be shown to contain less than 0.3% tetrahydrocannibanol (THC) on testing conducted within 15 days of harvest, a proposal that drew criticism from several parties. The final rule reduces some of the requirements, such as allowing 30 days to test and raising the negligence threshold to 1% rather than 0.5%. The rule also allows some flexibility for states to develop testing methods that take into account variables such as regional environmental factors.

UK Opens Consultation on GE Foods

The U.K. Department for Environment, Food & Rural Affairs (Defra) has opened a consultation on the regulation of genetic technologies in food. “It mainly focuses on the regulation of gene edited (GE) organisms possessing genetic changes which could have been introduced by traditional breeding,” the consultation states. “[W]e are using this opportunity to engage separately and start gathering views on the wider regulatory framework governing genetically modified organisms (GMOs).”

“EU legislation controlling the use of GMOs was retained in the UK at the end of the transition period (after 31 December 2020). This retained legislation requires that all GE organisms are classified as GMOs irrespective of whether they could be produced by traditional breeding methods. Defra’s view is that organisms produced by GE or by other genetic technologies should not be regulated as GMOs if they could have been produced by traditional breeding methods. Leaving the EU provides an opportunity to consult on the implications of addressing this issue. We recognise there is a spectrum of opinions on these topics, and we are consulting to provide an opportunity for all views to be shared.”

Poultry Processing Speeds Executive Order Withdrawn

President Biden has withdrawn an executive order that would have allowed 25% faster processing speeds on poultry lines in meatpacking plants. The policy change would have allowed plants to process 175 slaughtered birds per minute, up from 140, in accordance with a proposal by the U.S. Department of Agriculture’s Food Safety and Inspection Service. Criticism of the proposal came from advocacy groups that argued the faster speeds with endanger workers, especially after a study purportedly showed that plants with waivers allowing the faster speeds had higher COVID-19 transmission rates.

California Files Prop. 65 Action Against Seafood Cos.

California Attorney General Xavier Becerra filed a lawsuit against five importers, wholesalers and distributors of seafood, alleging they sell fish with levels of cadmium and lead high enough to require warnings governed by the Safe Drinking Water and Toxic Enforcement Act (Prop. 65). California v. Pacific Am. Fish Co. Inc. (Cal. Super. Ct., filed December 28, 2020). The companies—Pacific American Fish Company, Rhee Bros., Seaquest Seafood Corporation, Jayone Foods and Clearwater Seafoods—sell products such as clams, mussels, octopus, oysters, squids and snails.

“When California’s consumers, restaurants, and supermarkets purchase seafood, they shouldn’t have to worry about whether the products they’re buying contain toxic chemicals,” Becerra said in a press release. “The seafood industry has a responsibility to ensure the safety of its products – and to warn consumers of any risks. I hope this lawsuit serves as a warning to any company that might skirt its responsibilities under Proposition 65. The California Department of Justice will hold you accountable.”

Consumers Challenge Tuna Content in Subway Tuna Sandwiches

A putative class action has alleged that Subway Restaurants Inc. sells tuna products that “do not contain any tuna nor have any ingredient that constitutes tuna”—the products “are completely bereft of tuna as an ingredient,” according to the complaint. Dhanowa v. Subway Restaurants Inc., No. 21-0498 (N.D. Cal., filed January 21, 2021). “As independent testing has repeatedly affirmed, the Products are made from anything but tuna,” the complaint asserts. “On the contrary, the Products are made from a mixture of various concoctions that do not constitute tuna, yet have been blended together by Defendants to imitate the appearance of tuna. Defendants identified, labeled and advertised the Products as ‘tuna’ to consumers, when in fact they were not tuna. Yet, Defendants have systematically and consistently continued to label and advertise the Products as ‘tuna.'” The complaint does not note what the Subway products are purportedly composed of if not tuna. The plaintiffs allege violations of California’s consumer-protection statutes as well as fraud, misrepresentation and unjust enrichment.

“Icelandic Skyr” Misleadingly Made in New York, Consumers Allege

Two consumers have filed a putative class action alleging that Icelandic Provisions Inc.’s skyr cultured dairy product is misleadingly marketed as made in Iceland despite being produced in New York. Mantini v. Icelandic Provisions, Inc., No. 21-0618 (S.D.N.Y., filed January 23, 2021). The packaging for the skyr, which features the text “Traditional Icelandic Skyr” and photos of an Icelandic countryside, “gives consumers the belief it is made in Iceland,” the complaint asserts. Although the back of the package indicates that the product is “made in Batavia, NY with domestic and imported ingredients,” the plaintiffs allege they “relied upon the representations and indications of the Product’s origins – literally and figuratively – in Iceland, and desired to purchase such a product.” Alleging fraud, negligent misrepresentation, unjust enrichment and violation of Pennsylvania’s consumer-protection statute, the plaintiffs seek class certification, injunctive relief, damages, costs and attorney’s fees.

Shook, Hardy & Bacon L.L.P.