Josh Long

The Food Law Blogger explores food litigation, including cases involving foodborne illness and labeling disputes, as well as key regulatory developments at the U.S. Food and Drug Administration and U.S. Department of Agriculture. Ping Josh Long with story ideas at jlong@vpico.com.

Does Mars Regret Touting Candy Bar As “Natural Source of Cocoa Flavanols”?
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Food manufacturers that are sued for false and misleading statements are prone to argue that federal law bars the lawsuits.

Mars Chocolate North America, LLC is no exception. Defending itself in a proposed class-action lawsuit, the confectionary giant recently theorized plaintiff’s nutrient content claims (and calorie claims) were preempted by the Nutrition Labeling and Education Act of 1990 (NLEA). 

The arguments fell on deaf ears; U.S. District Judge Lucy Koh declined to dismiss the case.

The plaintiff, California resident Phyllis Gustavson, claims she never would have purchased $25 in candy bars had she known the statements on the packaging were deceptive.  

Nutrient Content Claims

Among Gustavson’s purchases: a dark chocolate Dove Bar, whose packaging declared the treat was a “natural source of cocoa flavanols" and a certain process “helps retain much of the naturally occurring cocoa flavanols" in cocoa beans, according to Koh's order.  

As the judge pointed out, statements on a food product label are considered nutrient content claims if they characterize the level of a nutrient that the Federal Food, Drug & Cosmetic Act (FDCA) requires be listed on the nutrition label.

Gustavson argued Mars’ statements constituted unlawful nutrient content claims because Mars used a term—“source"—that deviated from the specific terms FDA regulations authorize. According to plaintiff, FDA regulations permit use of the term “good source" to characterize the content of a nutrient such as cocoa flavanols. (In the latter case, the nutrient in the product must contain a minimum certain percentage of the reference daily intake or reference daily value; see 21 C.F.R. Section 101.54).

Mars countered that plaintiff was seeking to impose requirements that diverged from FDA regulations, violating the NLEA’s express preemption clause. As defense lawyers for the food industry often point out in requests to dismiss lawsuits, the NLEA preempts states from establishing food labeling requirements that do not mirror certain FDA regulations.

Viewing the allegations in the light most favorable to the plaintiff (a legal standard when reviewing motions to dismiss), the judge rejected Mars’ preemption argument.

FDA Letter

A 2011 letter FDA wrote to Jonathan Sprouts, Inc., and decisions in similar California lawsuits, partially persuaded Koh to side with the plaintiff. In the letter, FDA declared that use of the term “source" on products constituted nutrient content claims that were subject to the FDCA.

Although Mars argued the letter is not binding, Koh noted the company failed to identify any contrary statements that FDA has made. “Even if, as Defendants argue, the Sprouts Letter is entitled to deference only ‘proportional to its power to persuade,’ the Sprouts Letter’s persuasiveness is bolstered by its status as the only FDA pronouncement on this topic known to the Court," the judge wrote in the 18-page order, which is provided courtesy of Courthouse News Service.

Koh also cited FDA comments in the Federal Register that demonstrated the agency was “concerned that the term ‘source’ might lead consumers to conclude that a nutrient was present in a product at significant levels."

Mars was hoping Koh would adopt the reasoning of her colleague in a case filed against Nestle. In Trazo v. Nestle USA, Inc., plaintiff challenged the use of the statement “natural source of antioxidants". The judge found the statement was not a nutrient content claim, reasoning “’natural’, unlike ‘good,’ ‘excellent,’ and ‘fine,’ does not modify the word ‘source’ to indicate the level of the ingredient."

Koh didn’t follow the Trazo decision and noted other California courts encountering similar nutrient content claims declined to dismiss the lawsuits based on preemption. Two of the courts cited the Jonathan Sprouts letter in determining that "natural source of antioxidants" constituted nutrient content claims.

“As noted above, a manufacturer’s decision to highlight the fact that its product is a ‘source’ or ‘natural source’ of a given nutrient arguably does suggest that the nutrient is present in meaningful quantities," Koh wrote. 

Bottom line: The series of rulings that cite the Jonathan Sprouts letter could give food manufacturers an incentive to change labels that characterize a food as a “source" or "natural source" of a nutrient. Whether those terms standing alone are false or misleading is almost beside the point. In the long run, changing the labels may be far less expensive and time-consuming than the cost and headache of defending lawsuits such as the one brought against Mars.

 

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