Food & Ag Weekly Round-Up: January 12, 2017

GeekWire reported on selection of Amazon as one of several grocers in a pilot program to accept food stamps for online grocery orders.

Food Safety News reported on progress of USDA funded project to improve food safety.

Reuters reported on Burger King and Tim Hortons plan to curb antibiotics used in chicken.

Food Safety News discussed FDA comment deadline on food label regulations.

The Phoenix Business Journal discussed Starbuck’s removal of beer and wine from many locations.

FDA Issues Draft Guidance on Revised Nutrition Labeling and Reinforces July 26, 2018 Compliance Deadline

On January 4th, the U.S. Food and Drug Administration (FDA) issued two Federal Register notices (available here and here) announcing the availability of two long-awaited draft guidance documents.  The first draft guidance document, Questions and Answers on the Nutrition and Supplement Facts Labels Related to the Compliance Date, Added Sugars, and Declaration of Quantitative Amounts of Vitamins and Minerals, is intended to assist industry in complying with the May 2016 final rule amending the Nutrition Facts and Supplement Facts labeling requirements.  Although the guidance document does not extend the earliest compliance deadline of July 26, 2018, it does clarify that products that are labeled before July 26, 2018 (or July 26, 2019 for manufacturers with less than $10 million in annual food sales) do not need to be in compliance with the new labeling requirements and may use the old nutrition label.  Products that are labeled on or after July 26, 2018 (or July 26, 2019 for manufacturers with less than $10 million in annual food sales) must bear a nutrition label that complies with the new nutrition labeling requirements.

The second draft guidance document, Reference Amounts Customarily Consumed, provides examples of foods that belong to each product category included in the tables of Reference Amounts Customarily Consumed (RACCs) per Eating Occasion that are established under the serving size regulatory provisions. FDA intends for these examples to assist industry in identifying the appropriate food categories for their products and determining the serving size on a product’s Nutrition Facts label.

While comments on any of the topics discussed in the draft guidance documents may be submitted at any time, they should be submitted by March 6, 2017 to be considered by FDA in finalizing these two guidance documents. The Husch Blackwell Food Safety & Labeling team is available to assist with the comment process or to answer any questions you may have regarding FDA rules.

Food & Ag Weekly Round-Up: January 5, 2017

PR Newswire reported on implementation of FDA rules on the use of antibiotics in farm animals.

The University of California Berkeley  discussed a USDA grant to develop robot technology to assist  farmers in saving water.

Biofuels Digest discussed USDA funding for the farm-to-fleet program.

Natural Grocers discussed top ten nutrition trends for 2017.

Business Insider reported on the slump in the casual dining sector.

Food & Ag Weekly Round-Up: December 1, 2016

Reuters reported on Pilgrim’s Pride acquisition of organic chicken line.

Food Navigator discussed the launch of an EU program to prevent food waste.

The Business Insider reported on a recent drought analysis of the Southeast United States.

Vox reported on the impact of drought on California trees.

Farm and Dairy discussed the EPA’s recent renewable fuel standard volumes for ethanol.


Food & Ag Weekly Round-Up: November 17, 2016

AgriMoney discussed the impact of online auction on cattle prices.

Farm Business discussed a new report on the use of antibiotics on farm animals.

Convenience Store Decisions discussed a report on how millennials are influencing food packaging.

Reuters discussed the potential for bird flu outbreaks in the coming months.

BBC reported on the expansion of Amazon grocery delivery in the UK.


Appellate Court Rejects Ingredient List Defense in Cupcake Mix Case

All natural

Food manufactures facing deceptive food labeling claims under the Missouri consumer fraud statute were recently dealt a setback by the Missouri Court of Appeals for the Eastern District of Missouri. On November 8, 2016, the appellate court issued an opinion in Murphy v. Stonewall Kitchen, LLC, reversing the trial court’s adoption of the so-called “ingredient list” defense.   Although the ingredient list defense may be relevant at trial, the court held that the defense does not defeat a consumer fraud claim under the Missouri Merchandising Practices Act (“MMPA”) arising from the use of “all natural” labeling.  Finding that the plaintiff’s allegations were sufficient to survive a motion to dismiss, the court remanded the case back to the trial court for further proceedings.

In Murphy, the plaintiff filed a putative class action under the MMPA alleging that Stonewall Kitchen misrepresented its vanilla cupcake mix as “all natural” when the mix contained sodium acid pyrophosphate (“SAPP”), a synthetic leavening agent found in commercial baking powders.  Stonewall Kitchen in turn filed a motion to dismiss for failure to state a claim, asserting, in part, that plaintiff failed to allege an unlawful act under the MMPA because SAPP was included on the product’s ingredient list and the plaintiff’s proposed definition of “natural” was “fatally subjective and unworkable.”  Stonewall Kitchen further argued that the plaintiff failed to plead facts showing that his alleged loss was caused by any alleged wrongful act.  Agreeing with Stonewall Kitchen, the St. Louis Circuit Court determined that plaintiff failed to plead an unlawful act within the meaning of the MMPA.  Noting that the terms “natural” and “all natural” are ambiguous and lack any generally accepted meaning in the food labeling context, the court reasoned that the cupcake mix’s packaging, when taken as a whole, was not deceptive or misleading, because it disclosed that SAPP was an ingredient.

In reversing the trial court, the Missouri Court of Appeals determined that the assertion that the term “all natural” is subjective and ambiguous did not cause plaintiff’s claim to fail, as “a reasonable consumer’s understanding of the term ‘all natural’ or whether a practice is unfair or deceptive are questions of fact.” The court further held that that the parties needed to conduct more discovery to flesh out the facts needed to resolve those questions.

The appellate court also expressly rejected the assertion that the ingredient list defense defeated plaintiff’s claim as a matter of law. Relying on case law from the Ninth Circuit, the court stated that the U.S. Food and Drug Administration (“FDA”) does not require food manufacturers to provide an ingredient list on their products “so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misrepresentations and provide a shield from liability for that deception.”  The court further noted that a reasonable consumer would expect an ingredient list to comport with the representations made on a product’s packaging and explained that the manufacturer is in a superior position to know whether the ingredients comport with its packaging.  Acknowledging that the ingredient list ultimately may be relevant to Stonewall Kitchen’s defense at trial, the court determined that the ingredient list defense could not defeat a MMPA claim as a matter of law.

Additionally, in response to Stonewall Kitchen’s argument that plaintiff failed to allege that SAPP is both artificial and synthetic and that it would not normally be expected in the cupcake mix, the court held that there was no requirement that the plaintiff plead that SAPP would not normally be expected in the cupcake mix. Finally, the court noted that plaintiff adequately pled an ascertainable loss under the benefit-of-the-bargain rule by asserting that he paid a premium price for Stonewall Kitchen’s “all natural” products out of a desire to purchase “healthy food products that do not contain potentially harmful synthetic ingredient.”

The appellate decision in Murphy is significant for any food manufacturer involved in litigating food labeling claims brought under the MMPA, as it reduces the claims that food manufacturers can make on their products without potentially incurring liability.  In the wake of the Murphy decision, food manufacturers may want to closely monitor the activities of FDA in case the agency breaks from its longstanding policy of declining to formally define the term “natural” given the agency’s recent request for comments on the use of the term “natural” on food labeling.  As FDA has previously mentioned, however, defining the term “natural” would require involving other federal agencies such as the United States Department of Agriculture, as well as considering any strictures flowing from the First Amendment.  Thus, even if FDA ultimately decides to formally define the term, it will likely take the agency a number of years to do so.

Husch Blackwell and its cross-disciplined team of litigators across our offices have been assisting food and consumer product manufactures in their defense in the latest round of putative class action filings, including for clients sued by the same Plaintiff’s law firm that filed and briefed the Murphy case.  These cases have involved, among other things, claims directed to “Natural” and “Made in America.”  The latest trend locally now seems to focus on “slack filling” claims and “evaporated cane juice” language.

Please contact a member of our team for further information or updates.

A Hugely Successful Ag Innovation Showcase

Conference Booth with Drone

The eighth annual Ag Innovation Showcase took place on September 12th through 14th and was organized by the Larta Institute, the Donald Danforth Plant Science Center, and the Bio Research & Development Grown (BRDG) Park.  The annual event brings together innovators, researchers, investors, and other thought leaders from across the globe to focus on the use of agricultural technology to further enhance productivity and sustainability and address other issues of significant interest to the agricultural community.

This year’s 20+ presenting companies offered innovative business platforms to address and assist with Precision Ag, Ag inputs, alternative food and feedstocks, and developing economies.

Husch Blackwell was proud to return as a sponsor for this event. Our firm sponsored the mid-day session on September 14th titled: Disruptive Dialogue: Zero Waste Across the Food Value Chain? The panel included Christine Moseley, Founder & CEO of Full Harvest, Dan Morash, Founder of California Safe Soil, and Joanie Taylor, Director of Consumer Affairs and Community Relations at Schnuck Markets, Inc., and Stephanie Potter, Vice President of Sustainable Business Development at Rabbobank North America Wholesale served as the panel moderator.  The panel explored the context and causes for food waste in the United States and highlighted innovations across the food value chain that enable more complete utilization of food production.  As with the other sessions at this annual event, attendance was significant and attendee participation was vast.

The dates for the 2017 showcase have already been announced as September 11-13, 2017.  For more information about the showcase, click here.

Food & Ag Weekly Round-Up: November 10, 2016

Reuters reported on the impact of warm weather on animal feed demand.

Ag Innovation Ontario discussed technology to make single serve coffee more environmentally friendly.

Food Safety News reported on FSIS enforcement actions.

Fresh Plaza reported on the launch of a food waste prevention app in New York.

The USDA discussed the use of high tech agriculture.


Food & Ag Weekly Round-Up: November 3, 2016

Water World discussed USDA investments for clean water in rural communities.

Farm Progress reported on the status of the 2016 harvest.

ABC News reported on drought impact on the South.

The Boston Globe reported on coffee demand from millennials.

 Nation’s Restaurant News discussed McDonald’s recent results.