oatsQuaker Oats has become the newest target in the wave of class action litigation against food manufacturers.   A lawsuit currently seeking class certification has been filed on behalf of consumers in New York and California for the company’s claim that its oatmeal is 100% natural.

According to the allegations of the complaint, an independent lab in California tested Quaker’s Quick 1-Minute oatmeal and found glyphosate, a common pesticide, in the product.  Because of the glyphosate, the lawsuit alleges that Quaker’s 100% natural claim is false and misleading.  The test was performed only on the Quick 1-Minute product, but the suit also includes claims relating to Old-Fashioned Oats and Steel Cut Oats.

Quaker Oats responded in a statement that it does not add glyphosate to the grains during the milling process but that farmers may use it on certain grains before harvest.  It further stated it cleanses the oats it receives.  Significantly, the testing revealed glyphosate at a level of 1.18 parts per million in the product, which is about 4 percent of the level the EPA permits in cereal grains.

The plaintiffs’ lawyers, who funded the testing, argued that “[t]he issue is that Quaker advertises these products as 100 percent natural, and glyphosate in any amount is not natural.”

The suit asks for refunds for consumers who have purchased the products and that Quaker either disclose the glyphosate content or remove it.

This approach marks a shift in consumer class action litigation, as plaintiffs’ counsel are now testing products in preparation for litigation.  No doubt such testing will continue to expand, to other pesticides and substances, but certainly to other products.  Time will tell whether the federal district courts adjudicating the lawsuit will find the EPA regulations compelling, but the unique issues in this case are sure to harvest much interest as the litigation unfolds.

My colleague in the Food & Agribusiness group posted yesterday on Husch Blackwell’s Food & Agribusiness blog regarding genetically modified salmon and potential setbacks in Food Court.  I thought it was of equal interest to this blog’s readers.  Enjoy!

By:  Mike Annis

Over the past few years, there has been a virtual onslaught of lawsuits directed to the food and beverage industry, principally relating to claims that certain marketing efforts of food and beverage producers falsely advertise their products and encourage consumers to purchase them based upon fraudulent representations.  Likely due to California’s expansive consumer protection statutes and perceived “green” nature, the U.S. District Court for the Northern District of California has become the venue of choice for many of these lawsuits and, as a result, has been dubbed by some as the “Food Court.”

Recently, the Food Court received another complaint directed to a human food product. Rather than a labeling or false advertising claim, this suit contends that the U.S. Food and Drug Administration’s (FDA) recent approval of a genetically modified (GM) animal intended for human consumption was unsound and further challenges the FDA’s authority to even approve genetically modified animals used for food.  At issue is a GM salmon offered by AquaBounty Technologies, Inc, which claims its now-FDA approved salmon grow twice as fast as wild versions of Atlantic salmon while consuming 25% less feed in the process.  In November, the FDA approved AquaBounty’s GM salmon finding the product “safe for human consumption” and equally nutritious as non-genetically engineered Atlantic salmon.  The AquaBounty salmon is the first GM animal cleared for human consumption in the United States. Continue Reading Will Genetically Modified Salmon Be Served a Setback in the Food Court? Consumer Groups Seek to Stall Release of GM Fish

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There is a Calvin and Hobbes cartoon where Calvin’s dad is at the grocery store trying to decide which type of potato chips to buy between “original,” “lite,” “less fat,” “less salt” and various combinations of the terms. The punch line is “Frankly, my life was plenty complicated before the potato chips.”

Food labels are in some ways now more complicated than ever. Walking down a grocery store aisle, you will see “all natural,” “antibiotic free,” “healthy” and a myriad of other terms that characterize the food being marketed. Let’s call these little additions “selling words.” What are selling words? They are words that are put on a package because somebody decided consumers will be more likely to buy the product if they see the selling words.

The people who come up with selling words are smart. They do studies and look at data. They spend a lot of time figuring out what drives consumer decision making. I’m a consumer. When I go to the grocery store, I am more likely to buy products that say things like “all natural,” “healthy,” and “no artificial flavors.” But, selling words are tricky from a legal perspective.  Many of these kinds of claims on food labels and packaging are neither expressly mandated nor prohibited by the current federal food labeling regulatory scheme, and sometimes consumers (or at least attorneys) disagree on whether the selling words match up with the actual content of the food. As a result, the use of selling words on product packaging has become a target of litigation.

This article is Part I of a two-part series of blog posts addressing litigation surrounding food labeling and advertising.  This part provides broad context for this kind of litigation, first by explaining the food labeling regulatory scheme and general food labeling litigation trends.  Part I also discusses the primary categories of plaintiffs and the legal means they use to bring these actions.  Part II of this series (coming soon) addresses consumer class action suits in greater detail, giving specific examples of the selling words that generate the most legal controversy. Continue Reading “Selling Words” and Food Labels: the New Tobacco Litigation

RockmelonsOn January 28, United States Magistrate Judge Michael Hegarty sentenced Eric and Ryan Jensen (no relation to our highly esteemed partner and blog contributor Marnie Jensen) to five years of probation, six months of home detention, 100 hours of community service, and $150,000 in restitution to each victim of the deadly 2011 listeria outbreak. The outbreak, which the USDA’s Food Safety and Inspection Service traced back to Jensen Farms, resulted in 33 deaths and sickened 147 people in 28 states. The brothers were charged with six counts of Introducing an Adulterated Food into Interstate Commerce in violation of 21 U.S.C. § 331. Although criminal charges are unusual in cases like this, the FDA argued that criminal prosecution was justified here due to the “special responsibility” that food processors bear to “ensure that the food they produce and sell is not dangerous to the public.” The situation is tragic, but there are some important lessons that we can learn from these events. Continue Reading Jensen Brothers Sentenced for Listeria Outbreak: Lessons for Producers and Inspectors