Food & Beverage Digest | December 2019

FOOD  BEVERAGE D I G E S T D E C E M B E R 2 0 1 9 | 3 2019 Served Up To kick off the holiday season and as 2019 comes to a close, here are our 10 key items from 2019 in review, served up in holiday style: 1. Wishing you and yours a cup of kindness yet for auld lang syne! 2. Yes, Virginia, you can try a class action. The plaintiff sued Bayer, challenging “One a Day” vitamins’ immunity support and health claims. Bayer successfully defended these claims before a jury in California. Farar v. Bayer AG , No. 3:14-cv-04601 (N.D. Cal.). Read about it in the April edition of our Food & Beverage Digest . 3. Eggnog police. Over 25 class actions have been filed in district courts sitting in New York challenging vanilla flavor. Read about some of these suits in the October edition of our Food & Beverage Digest . 4. A partridge in a pear tree. Milk, Meat, Butter, Oils! The FDA considers modernizing standards of identity. 5. Oh, you better watch out, you better not cry. The first (non-settlement) slack-fill class was certified. Escobar v. Just Born Inc. , No. 2:17-cv-01826 (C.D. Cal.). Read about it in the April and July editions of our Food & Beverage Digest . 6. Who’s been naughty? Over 20 FDA warning letters were sent to CBD companies, most of them making impermissible health claims, in 2019. Consumers are now getting in the class action game. Read about one of these warning letters in the November edition of our Food & Beverage Digest . 7. And nice? Numerous false advertising class actions were dismissed against companies whose products have trace amounts of glyphosate below FDA tolerance levels. Read about it in the July edition of our Food & Beverage Digest . 8. I made it out of clay. Key Food Safety Modernization Act implementation dates in 2019. Make sure your supply chain is tight. 9. Chestnuts roasting on an open fire? The FDA will not focus on enforcement of compliance with the new Nutrition Facts Label requirements until mid-2020. 10. Bring me flesh and bring me wine. The USDA and FDA established an interagency framework for regulating food items produced using cellular agriculture methods of production. New Lawsuits Filed Plaintiff Claims It’s Impossible to Have Supposed Vegan Whopper His Way Williams v. Burger King Corporation , No. 1:19-cv-24755 (S.D. Fla. Nov. 18, 2019). A disgruntled vegan consumer filed a putative class action against Burger King, alleging that the international burger chain cooks its “Impossible Whoppers” on the same grills as meat patties. In August 2019, the plaintiff alleges, the burger chain began offering the “Impossible Whopper,” claiming that it is meat-free, “0% beef,” and “100% Whopper.” The plaintiff claims he practices a strict vegan diet, meaning he does not eat or drink anything that uses animal byproducts. After seeing various advertisements on social media, the plaintiff visited one of the burger franchises, and in the drive-through ordered the new Impossible Whopper sans mayonnaise. Only afterward did the plaintiff allegedly learn the truth: it is standard procedure to cook the vegan Impossible Whoppers on the same grills as traditional meat patties, which contaminates the vegan patty with meat byproducts. Compounding matters, there was no signage alerting the plaintiff to this fact. This failure, the plaintiff claims, breached Burger King’s common-law duties and violated Florida’s deceptive and unfair trade practices act. He seeks to certify a nationwide class for these violations. Plaintiff Udderly Upset at Ice Cream Company’s Promotion of “Happy Cows” Ehlers v. Ben & Jerry’s Homemade Inc. , No. 2:19-cv-00194 (D. Vt. Oct. 29, 2019). An ice-cream eater in Vermont has filed a putative class action lawsuit against Ben & Jerry’s and its parent company for deceptively labeling and marketing Ben & Jerry’s ice cream. The plaintiff contends that Ben & Jerry’s used to be a socially conscious company that benefited Vermont dairies and economy—but that changed after Ben & Jerry’s was acquired in 2000. Afterward, the plaintiff alleges, Ben & Jerry’s products represented that they were made with milk and cream exclusively from“happy cows” on diaries that participated in a humane “Caring Dairy” program. In reality, he alleges, only a minority of the milk and cream in Ben & Jerry’s ice cream comes from these Caring Dairy farms, with the remaining coming from mass-production dairy operations. The plaintiff seeks to represent a class of national and Vermont consumers of Ben & Jerry’s ice cream. He alleges that the defendants’ false advertising violated the Vermont Consumer Protection Act, breached an express warranty, and caused the companies to be unjustly enriched.