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Do You Have a Constitutional Right to Food? Understanding the Food Sovereignty Movement

Rachael Moore Matt Bober July 26, 2023

Well, as of November 2021, if you live in Maine, you do. It’s the first state to give constitutional protection to the “right to food.” This constitutional amendment capped a growing and expanding “food sovereignty” movement in Maine that seeks to deregulate the state’s small-scale farming and food operations. Almost a year and a half since its ratification, the Right to Food amendment has now made its way to Maine courts where some of its scope and limits will be tested. READ MORE

Kind Bar MDL plaintiffs appeal federal district court smack down

Rachael Moore December 19, 2022
Granola bar

After seven years of contentious (not to mention costly) litigation, in September 2022, the federal district judge overseeing the In re: Kind LLC “Healthy and Natural” multi-district litigation decertified three state classes of Kind bar consumers and granted Kind’s motion for summary judgment. At issue is Kind’s labelling of certain granola bars and snacks as “ALL NATURAL / NON GMO.” READ MORE

Regulatory risks of marketing CBD-infused food, beverages, and dietary supplements

October 14, 2021

As is evident from a walk down a grocery store aisle, many companies are marketing CBD-infused food, beverage, and dietary supplements. And, as many of these companies know, the FDA has not approved CBD use in these products in accordance with the Federal Food, Drug & Cosmetics Act (“the Act”). It is important for companies to understand the regulatory risks involved with selling these products. READ MORE

Hawaiian style or made in Hawaii: Class action lawsuit highlights product origin labeling laws

March 2, 2021
A pile of Hawaiian-style bread rolls

A recent class action disputes whether King’s Hawaiian rolls are appropriately named because they are not actually made in Hawaii. The question can be resolved by looking to federal and state law on product labeling. READ MORE

We’ve got ‘beef’: Plant-based meat maker appeals decision in favor of Oklahoma’s new labeling law

January 13, 2021
Lab worker inspecting lab meat

A federal court refused to block Oklahoma’s new law requiring disclaimers on plant-based meat products, prompting an appeal to the Tenth Circuit and continuing the fight between the meat industry and plant-based food companies. READ MORE

Seventh Circuit rejects 'ingredient list' and 'common sense' defenses in cheese labeling lawsuit

December 10, 2020
A block of parmesan cheese and grated cheese

In a much anticipated decision, the Seventh Circuit reversed a district court’s dismissal of claims alleging that “100% Grated Parmesan Cheese” claims on packaging are deceptive. READ MORE

No preemption for you: “No preservatives” soup label lawsuit not preempted

December 2, 2020
A bowl of tomato soup and a grilled cheese sandwich

A federal judge recently held that false advertising claims related to a “no preservatives” claim on soup labels were not preempted. Although the result is not necessarily surprising, the presented a unique question of first impression. READ MORE

Made in the USA: False US-origin labeling class actions dismissed

October 1, 2020
A package of ground beef with a nutrition label

Last month, the District of New Mexico dismissed two proposed class action lawsuits accusing four food industry giants of falsely labeling beef products as “Product(s) of the USA.” Food industry companies must be vigilant in monitoring food labeling regulations to avoid litigation and regulatory scrutiny. READ MORE

‘Butter’ believe it: Federal court makes decision in vegan dairy label fight

September 24, 2020
A stick of butter with two slices cut out

The vegan and plant-based food industry has had an important win over the use of dairy terminology after. A Federal court granted Miyoko’s Kitchen Inc.’s motion for a preliminary injunction to prevent the State of California from taking enforcement action relating to use of the terms “butter”, “lactose-free” and “cruelty-free.” READ MORE

‘Boneless wings’ or ‘saucy nugs’: Viral video provides lesson on food labeling laws

September 9, 2020
Buffalo-style boneless wings on a plate with celery and ranch sauce

Though the jury is out on whether “boneless wings” are appropriately named, one thing is certain – food industry companies must be vigilant in monitoring food labeling regulations to avoid litigation, regulatory scrutiny or simply bad press. READ MORE

Hot tea lawsuit fails on appeal

August 28, 2020
A mug of hot tea on a desk

Almost 26-years after the infamous Liebeck hot coffee lawsuit, the California Court of Appeals for the Second District affirmed in an unpublished opinion the dismissal of a woman’s lawsuit suing Starbucks Corporation after she was allegedly burned by hot tea. READ MORE

FDA and OSHA publish pandemic checklist to assist food industry

August 25, 2020
Photo of commercial kitchen with chefs blurred from movement

On August 19, the U.S. FDA and OSHA published a checklist entitled “Employee Health and Food Safety Checklist for Human and Animal Food Operations During the COVID-19 Pandemic.” While the checklist is not exhaustive and does not create new legal obligations, it pulls from existing guidance provided by the FDA, the CDC and OSHA to serve as a quick reference to help the food industry. READ MORE

Force Majeure clause protection during COVID-19

April 15, 2020
illustration of a cartoon man examining a contract with a magnifying glass

Many food and beverage industry companies are assessing whether they can be excused from or enforce contract performance under force majeure clauses in light of COVID-19 and related government action. READ MORE

Avoiding claims of deceptive advertising for COVID-19-related products

April 6, 2020
A hand getting hand sanitzer from a bottle

As businesses pivot to manufacture much-needed health and safety items such as masks, hand sanitizer and disinfectant wipes, they should also be diligent in consulting with their attorneys to avoid claims of deceptive advertising for COVID-19-related products. READ MORE

FDA: Restaurants can omit Nutrition Facts label on packaged food during COVID-19

March 31, 2020
restaurant table

On March 26, 2020, the FDA issued temporary guidance regarding nutrition labeling of certain packaged foods during the COVID-19 public health emergency. In the guidance, the FDA advises that it does not intend to object to the sale by restaurants of food packaged and sold without Nutrition Facts labels. READ MORE

COVID-19: How FDA-regulated food and beverage companies can make hand sanitizer

March 25, 2020
Close-up shot of the back of a bottle of hand sanitzer

During the COVID-19 outbreak, many companies may be interested in retrofitting their production facilities to help provide medical supplies and/or cleaning supplies. The FDA has issued a temporary policy allowing companies to produce alcohol-based hand sanitizer, so long as a number of important conditions are met. READ MORE

For state meat labeling laws, everybody wants the 'bacon'

September 11, 2019
Food scientist inspecting lab-grown meat

The rising tide of state laws restricting meat substitute companies from labeling their products as “meat” has ignited responses from several businesses in the industry. Meat substitute producers are fighting the labeling laws in court, often challenging the constitutionality of “meat” labeling bans. READ MORE

7 tips for creating a meaningful food safety program

July 24, 2019
Eggs on a conveyor belt in a factory

In food production facilities, poor safety practices can responsible for wide-spread outbreaks and contamination—often leading to incarceration for those responsible. Implementing and following a meticulous food safety plan is essential to achieve food safety goals and avoid harsh penalties. READ MORE

USDA, FDA announce joint effort to regulate ‘cell-cultured food products’ from meat and poultry

November 21, 2018
lab work with cells

On November 16, 2018, the USDA and FDA announced their intention to “jointly oversee the production of cell-cultured food products derived from livestock and poultry.” In this framework, the FDA would oversee cell collection, cell banks, cell growth and cell differentiation. The USDA would then oversee the production and labeling of the food products. READ MORE

California legislature seeks to narrow 'slack-fill' packaging claims

Jeff Brown November 6, 2018
Potato chips in bag

Recent California legislation could limit the extent advertising or competition claims are made against food packaging containing too much empty space. If food-product makers adhere to the new amendments, they may avoid unfair claims. READ MORE

Labeling of meat at ‘steak’ in constitutional challenge to Missouri law

November 5, 2018
Lab worker inspecting lab meat

A lawsuit is challenging Missouri’s recent law criminalizing the labelling of lab-grown animal cell foods as “meat.” The outcome could have significant effects on the food and livestock industries, and the ability of cell-based meat producers to market their products to consumers. READ MORE

FDA puts liquid nitrogen use on ice in new Food Code interpretation

November 1, 2018
Ice cream prepared with liquid nitrogen

The FDA has issued a warning for businesses regarding the handling and consumption of food prepared with liquid nitrogen or dry ice, accompanied by new guidelines worth following. READ MORE

NY judge serves up spicy ruling: ‘All natural’ claims not preempted by bioengineered food disclosure law

August 21, 2018
Spices in jars and in small piles

Claiming food is “all natural” while still containing GMOs, at least in New York, is a risky choice. We explain why a spice company’s defense against a labeling claim fell flat – and how it found cover behind the FDA’s still-in-limbo guidance for what makes a product “natural.” READ MORE

Can almonds lactate? Standards of identity and why the FDA may soon target makers of milk substitutes

August 13, 2018
Photo of almond milk in a bottle, next to almonds

The FDA’s rule on what defines “milk,” and whether or not they enforce it, could lead to a sour situation. READ MORE

Fraudulent organic food imports: How food companies can decrease risks of getting defrauded in 7 steps

June 1, 2018
grain pouring into shipping container

The organic food market is booming, and so is false organic labeling, according to recent reports. Here's a brief overview of organic food labeling and import laws, and how food and agribusiness companies can protect against receiving fraudulently labeled food. READ MORE

The U.S. is one step closer to GMO food labeling

May 11, 2018

The USDA published long-awaited proposed rules for the National Bioengineered Food Disclosure Standard. Here’s what food companies need to know. READ MORE

Don’t cry over spilt – organic – milk

Jeff Brown May 10, 2018

The federal district court for the Northern District of California recently dismissed a putative class action lawsuit, which alleged that Horizon Organic milk containing “DHA” violated California’s unlawful and unfair business practices laws. READ MORE

9th Circuit invokes “reasonable child” standard to ice Starbucks consumer fraud claim based on cold drinks

Jeff Brown April 9, 2018

The Ninth Circuit Court of Appeals recently affirmed dismissal of a putative class action against Starbucks relating to the amount of liquid in its various-sized tea, coffee, and specialty drinks. READ MORE

New rules coming for GMO food labeling

March 27, 2018
GMO labeled fruit

Facing a consumer fraud lawsuit based on your product’s “non-GMO” or “GMO-free” labeling? The USDA’s forthcoming rules on the National Bioengineered Food Disclosure Standard may impact your defense. READ MORE

Class cert denied in baby food false labeling case: faulty regression model to blame

February 23, 2018

Since the decision in Comcast Corp. v. Behrend, lawyers have been clamoring to find a regression model that will support class-wide damages and help them clear the class certification hurdle. READ MORE

Can the ingredient list defense work? Look for ambiguity, invoke common sense

January 5, 2018
bread with nutrition facts listed

The ingredient list defense is not always successful at shielding food manufacturers from liability, but some recent defense wins caution against abandoning the strategy altogether. READ MORE

The USDA’s bioengineered food disclosure standard: Where are we now?

November 7, 2017

As food, beverage, and agribusinesses eagerly await the proposed rule on disclosure standard and labeling procedures for bioengineered foods — due in July 2018 — it’s worth reviewing the efforts of the USDA’s Agricultural Marketing Services (AMS) toward determining when and how genetically engineered foods must be disclosed. READ MORE

WARNING! No warnings allowed to stop sales of sugary drinks

Jeff Brown September 28, 2017
Food Fight_default blog

The 9th Circuit concluded that rather than being “purely factual and uncontroversial,” the warning requires advertisers to convey San Francisco’s disputed policy views, which unduly burdens and chills protected commercial speech. READ MORE

9th Circuit rejects argument that ‘No Added Sugar’ means ‘healthy’

July 31, 2017

The 9th Circuit affirmed the dismissal of a food labeling lawsuit against Ocean Spray alleging that juice drinks featuring “No Sugar Added” labels were misleading without a disclaimer that the drinks were not low calorie. READ MORE

Downstream drama: Iowa utility can’t recover damages from county drainage districts

April 27, 2017

Critics of the lawsuit insist the lawsuit has wasted time and money that could have been used on real solutions such as watershed planning, increasing cover crop planting, and reducing tillage. READ MORE

Ag and drones – What do you need to know?

Sean McGowan Tyler Black February 9, 2017

Early adopters of commercial unmanned aircraft systems (“sUAS” or “drones”) technology have realized that drones help them do their jobs more efficiently and effectively. READ MORE

Update: GMO labeling regs are back in limbo

February 3, 2017
GMO labeled fruit

The Trump Administration’s latest executive orders have effectively prevented the USDA from promulgating rules on GMO food labeling, throwing a wrench in the agency's anticipated plans to give more direction to the food industry about the labeling of bioengineered foods. READ MORE

Blog browse: What the FDA has in store for the food industry in 2017

January 9, 2017
food 2017

Our Life Sciences Decoded blog takes a look at the year ahead for food safety. Several new rules under the Food Safety Modernization Act have triggers for compliance in 2017 which will affect how the food industry does business. READ MORE

Blog browse: Is the FSMA a plaintiff’s lawyer’s dream and the food industry’s nightmare?

January 4, 2017
food processing facility

Has a recent food safety law provided a roadmap to plaintiffs on how to bring successful products liability and unfair trade practices lawsuits against food companies? Our Life Sciences Decoded blog takes a look. READ MORE

Slack-fill lawsuits filling up state court dockets

December 21, 2016
Food Fight_default blog

Packaged goods companies beware of new state court lawsuits alleging excessive empty space. READ MORE

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

December 5, 2016
Food Fight_default blog

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

November 11, 2016
file cabinet

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

November 9, 2016
people mixing cake batter

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?

November 9, 2016

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

November 2, 2016

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

October 21, 2016

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

October 18, 2016

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

October 12, 2016
Food Fight_default blog

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’

October 6, 2016
Food Fight_default blog

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

September 27, 2016

“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

September 23, 2016
Food Fight_default blog

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

September 19, 2016
Food Fight_default blog

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

August 1, 2016

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

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?

Carl Rowley June 6, 2016

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

May 18, 2016

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

May 17, 2016
Food transporters - semi trucks

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

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
Supreme Court Tyson Foods

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

February 16, 2016
Food Fight_default blog

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

January 27, 2016
apple and globe

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

“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

December 9, 2015

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

December 2, 2015
Food Fight_default blog

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
Food Fight_default blog

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