Category Archives: fda

Pom Wonderful and other misleading food claims

Alan Levinovitz has a great article in Slate about scientific claims on food, which he argues are both misleading us and making us dumber.  You should read the whole thing, not least because he (perhaps with tongue in cheek?) calls … Continue reading

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is noncompliance with FDA definitions inherently misleading?

The FDA just issued a rule for nutritional claims about DHA and EPA. Explanation here. Some of the comments objected to the proposed rule on First Amendment grounds, and the FDA’s response is of interest. Basically, there’s a special statutory … Continue reading

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eCigarette advertising: past is prologue

Smithsonian National Museum of American History Dr. Robert Jackler, “Freedom to Vape”: Unregulated Exuberance in Electronic Cigarette Advertising (Dr. Jackler is talking to FDA and to Congress about the same issues on his trip to the East Coast) Note: I’m … Continue reading


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FDA has a standard, so no Lanham Act claim can be made

OraLabs, Inc. v. Kind Group LLC, 2014 WL 1395954, No. 13–cv–00170 (D. Colo. Apr. 10, 2014) The court adopted the magistrate judge’s recommendation to deny Kind leave to amend its counterclaims to add a Lanham Act false advertising claim. OraLabs … Continue reading

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tuna surprise: undisclosed slack fill was plausibly misleading

Hendricks v. StarKist Co., No. 13–cv–729, 2014 WL 1244770 (N.D. Cal. Mar. 25, 2014) Hendricks brought the usual California claims against Starkist alleging that its canned tuna products were underfilled (anywhere from 1.1% to 17.3% less tuna than there was … Continue reading

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NYT on finessing FDA label requirements

Oreo’s “Cookie Dough” Oreo has neither chocolate chips nor cookie dough.  “Compliance” with FDA labeling requirements is achieved (says Oreo) by the use of “flavor creme” in smaller type on the packaging, plus “chocolatey” chips since the chips don’t meet … Continue reading

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Topside Pom Wonderful briefs

I was unfortunately unable to work on an amicus brief in Pom Wonderful, but the good news is that INTA did participate. Petitioner’s brief. Generic Pharmaceutical Association (in support of neither party). INTA. United States (in support of neither party). … Continue reading

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A consumer protection case for Fox Mulder?

Hey, I get to make an X-Files reference! Lilly v. ConAgra Foods, Inc., — F.3d —-, 2014 WL 644706 (9th Cir. Feb. 20, 2014) Lilly alleged that the tasty coating on sunflower seed shells is designed to be eaten, and … Continue reading

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retail purchases mean class isn’t ascertainable

Sethavanish v. ZonePerfect Nutrition Co., 2014 WL 580696, No. 12-2907 (N.D. Cal. Feb. 13, 2014) Another case finding that, because the product is cheap and people don’t keep purchase records, and because somebody might lie to get a piece of … Continue reading

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News for storage jars: the real scandal in Virginia is the supplement

So Slate says, citing the FDA’s warning that the supplement the McDonnells helped tout is being unlawfully marketed.

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