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Food Fight

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New actions based on ‘nothing artificial’ labels may be halted as FDA redefines ‘natural’

Paige Burnham December 5, 2016
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On September 30, 2016, the Eastern District of Missouri stayed the Thornton action pending resolution of FDA proceedings to define the term “natural” on food labels. READ MORE

Analysis of sugar industry documents may impact litigation

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As they once did with the tobacco industry, public health researchers are analyzing internal sugar industry documents for evidence of attempts to influence policy and more. Food and beverage makers should be on high alert. READ MORE

Missouri appellate court rejects ‘ingredient list’ defense in food labeling case

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The Missouri Court of Appeals’ decision in Murphy is important for the dozens of putative MMPA food labeling class actions pending in the state. The decision broadly expands the scope of commercial speech for which product manufacturers are potentially liable under the MMPA. READ MORE

Has consolidation made egg and poultry industry ripe for the plucking?

Alicia Konstantinovich November 9, 2016
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While industry consolidation may breed increased productivity and higher profit margins, it can also result in antitrust (and securities) litigation. READ MORE

Updated FSIS guidance on raising animal label claims

Kim Bousquet November 2, 2016
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The guidance also provides specific examples of documentation necessary to substantiate certain claims related to (1) animal age, (2) animal welfare and environmental stewardship, (3) breed, (4) diet, (5) living/raising conditions, (6) raised without antibiotics, (7) raised without hormones, (8) source/traceability, and (9) third-party certification. READ MORE

5 legal trends food and agriculture companies need to know about

Kim Bousquet October 21, 2016
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Here are some top takeaways from the American Agricultural Law Association Symposium. The symposium covered a wide range of legal topics (including ag finance and collateral, veterinary feed laws, animal and human food safety, mergers and antitrust concerns, and many more topics). READ MORE

Another judge rules Starbucks doesn't deceive with its ice

Paul Stoehr October 18, 2016
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The court reasoned that even a child would know that including ice in a serving cup decreases the amount of beverage included in the cup. READ MORE

Deceptive trade practice claim to proceed based on ‘nothing artificial’ label

Paige Burnham October 12, 2016
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A federal court in Missouri allows deceptive trade practice claim based on “nothing artificial” label to proceed to discovery. READ MORE

Ninth Circuit holds juries can decide the definition of ‘natural’

Kim Bousquet October 6, 2016
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The 9th Circuit Court of Appeals says juries will decide whether “natural” label is misleading where food contains synthetic citric or ascorbic acids – Chad v. Brazil in a nutshell. READ MORE

Farming through the eyes of an ag lawyer

Kim Bousquet September 27, 2016
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“From The Ground Up: A Hands-On Seminar for Agribusiness Professionals” was designed to give busy professionals a deeper understanding of the challenges facing farmers. Program participants had the opportunity to step out of their corporate role for the day, learn about numerous aspects of farming from experienced professionals and play the role of a farmer working to build and run a Midwestern corn or soybean farm. READ MORE

Debate growing over preemption of state claims over organic produce labeling

Nino Przulj September 23, 2016
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Marentette and Quesada reach opposite conclusions and symbolize two sides of the same implied preemption coin. READ MORE

Empty spaces causing big problems: the rise of slack-fill litigation

Paul Stoehr September 19, 2016
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A growing trend of cases claims that allegedly deceptive product packaging can cause consumers to believe they are receiving more food or drink than what they are actually receiving. READ MORE

What food, packaging and agribusinesses need to know about the first-ever nationwide GMO labeling law

Kim Bousquet August 1, 2016
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On Friday, July 29, the President signed into law a bill amending the Agricultural Marketing Act of 1946 to insert a provision requiring disclosure (i.e., labeling in some manner) of bioengineered foods. READ MORE

Not so Wonderful: What the food industry can learn from Pom’s faulty health claims

Kim Bousquet July 18, 2016
Pom Wonderful FDA claims

In recent years, federal regulators have been closely monitoring the grocery aisle, ready to pounce on any product advertising unsubstantiated or sketchy health or disease-prevention benefits. No example of that increased policing is more instructive than the five-year regulatory and legal battle endured by POM Wonderful LLC (“POM”) over its line of pomegranate juices and supplements. READ MORE

Is San Francisco’s sugar-sweetened beverage rule watering down First Amendment rights?

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San Francisco’s ordinance targeting added sugar has the potential to leave a bad taste in the mouth of beverage makers and other product advertisers across the nation after a federal judge in California upheld a particularly onerous labeling mandate for sugar-sweetened drinks. READ MORE

No-GMOs are a no-go in Oregon and Hawaii

Kim Bousquet May 18, 2016
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The court reasoned that since the Ordinance regulates GE crops in order to prevent them from “contaminating” or “damaging” non-GE crops, then it is necessarily attempting to regulate what it considered a “plant pest” or “noxious weed.” READ MORE

Food transporters take notice – the FDA’s new Sanitary Transport Rule may affect you

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The Sanitary Transport Rule is different from the others passed so far under the FSMA, as it is focused on ensuring that food and food ingredients are properly transported “from farm to table” to ensure that contamination and adulteration are avoided en route and applies to both human and animal food. READ MORE

California’s high court: Federal law does not preempt state claims for intentionally false 'organic' labels

Jeff Brown May 16, 2016
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In late 2015, the California Supreme Court considered the narrow question of whether federal law preempts a state false advertising claim that a certified grower of organic food intentionally mislabeled a conventional product as organic. In this narrow circumstance, the Court answered: “no.” READ MORE

Tyson Foods decision leaves questions, and opportunities, for class action defendants

Sharon Rosenberg March 31, 2016
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A U.S. Supreme Court decision March 22 stemming from a suit by employees of a pork processing plant in Iowa leaves open key questions about whether a class may rely on “trial by formula” to establish class-wide liability. READ MORE

9th Circuit sends herbicide debate back to the EPA

Kim Bousquet Aaron Banks February 16, 2016
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The EPA asked the 9th Circuit to vacate its own prior decision to register Dow’s herbicide, Enlist Duo. The 9th Circuit recently denied that request and remanded the case to the EPA. The 9th Circuit’s order was short — only three sentences long. READ MORE

FDA dishes out major regulatory challenges for food industry in 2016

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As the FDA continues to intensify its enforcement over its regulated industries, food companies should prepare now to manage their risk by developing and implementing a set of strict compliance programs to avoid enforcement action. READ MORE

Commodity checkoff programs: What are they and how do they promote ag products?

Allison Manger January 14, 2016
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“Beef. It’s what’s for dinner.” “The incredible, edible egg.” “Got milk?” We’ve all seen the ads, but have you ever wondered who is behind these enduring taglines? The answer lies in government promotional programs for agricultural products. Both the federal and state governments collect fees, commonly known as “checkoffs,” on agricultural goods. Those fees are used to promote various agricultural products, expanding the market for such products and benefiting all producers. The fees are also used for research and development. READ MORE

EPA sets flip-flopping precedent, reversing prior pesticide registration

Kim Bousquet December 9, 2015
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In an unsettling reversal, on November 24, 2015, the EPA filed a motion for voluntary vacatur and remand of its registration of Enlist Duo after apparently reviewing a patent application Dow filed back in December 2014. READ MORE

‘Added Sugar’ gets a bad rap, but California’s ‘Food Court’ dismisses proposed class claims

Heather Counts December 2, 2015
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Added sugar is a particular target of the public health community and the media. The United States Food and Drug Administration has recently announced a proposal that would not only require “added sugars” on the Nutrition Facts label of packaged food, but would also include the percent daily value (%DV) for added sugars, as well. READ MORE

Welcome to the Food Fight Law Blog

December 2, 2015
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Covering the “Food Fight,” the blog will share timely insights into litigation trends, emerging arguments, and challenges facing the food and agriculture industries. The blog will also cover decisions regarding expert witnesses in food and agriculture litigation and relevant scientific articles. READ MORE