Posts Tagged ‘consumer protection’
Wednesday, May 18th, 2011
Prepared by Cara Wilking, J.D., Staff Attorney
Santa Clara County, CA and the City and County of San Francisco, CA enacted ordinances requiring restaurants to meet nutrition criteria for children’s meals that use incentive items such as toys to drive child consumer demand. Neither law bans the use of toys or other incentive items, and both laws are designed to protect children from being baited into requesting unhealthy meals. The Governor of Arizona recently signed into law a provision barring local governments from putting any limits on the use of “consumer incentive items” in “retail food establishment marketing.” Florida currently has an even broader law on the Governor’s desk that would prevent local control over “all matters related to the nutritional content and marketing of foods offered” at public food and lodging establishments. As chronicled by the LA Times, both of these laws were carefully orchestrated by the restaurant industry in response to so-called “toy bans.” In point of fact, both laws go far beyond Happy Meal toys.
In addition to protecting vulnerable child consumers, local governments regulate business conduct under their police power and zoning authority for a number of reasons including aesthetics, public health and public safety. Arizona’s consumer incentives law essentially exempts food retailers from any local regulation that may have an impact on their business activities related to consumer incentives. “Consumer incentives” are broadly defined to include: “any licensed media character, toy, game, trading card, contest, point accumulation, club membership, admission ticket, token, code or password for digital access, coupon, voucher, incentive, crayons, coloring placements or other premium prize or consumer product” associated with a meal served by or acquired from a restaurant, food establishment or convenience store. The legislation pending in Florida strips local control over “all matters related to the nutritional content and marketing of foods offered” at public food and lodging establishments.
Many communities maintain the character of their communities through local aesthetic-related zoning laws. Imagine a small city with a historic downtown preserved by local zoning ordinances to protect the aesthetic character of the city. The community becomes concerned when a quick service restaurant starts putting large signs in its windows marketing a combo meal with a wrapper that one can scan with one’s phone to get points towards a future purchase. A local authority goes out to talk to the franchise owner and ask him to remove the signs as they are not in keeping with the local zoning ordinance. The restaurant owner refuses to remove the signs. Under the legislation enacted in Arizona and pending in Florida, the city would be powerless to challenge the practice.
The as yet to be enacted Florida law, is so broad that it would prevent local governments from requiring additional nutritional disclosures to consumers about the calorie or sodium content of restaurant menu items. In addition, some states delegate consumer protection authority to city and county attorneys. Such authority was used by a city attorney to make the first formal challenge to misleading “Immunity” claims on children’s cereal marketed at the height of the swine flu outbreak. The pending Florida law arguably would even exempt any food marketing by a restaurant or public lodging from local city or county attorney enforcement of deceptive and unfair business practices laws.
A recent story by Reuters run in a number of news outlets analogized the current legislation to “cheeseburger” or “commonsense consumption” bills, also sponsored by the restaurant industry. Cheeseburger bills are on the books in over 20 states and bar personal injury claims against food makers and restaurants for injuries related to long term over-consumption of food. Many state cheeseburger bills, however, do not immunize food sellers from liability when they knowingly violate laws pertaining to marketing, distributing, advertising, labeling or sale of the goods such as state consumer protection statutes prohibiting deceptive, unfair or unconscionable trade practices. The very purpose of local ordinances tying child incentive items to nutritional quality is to protect children from the fundamentally unfair and deceptive use of toys to generate child requests for unhealthy foods. The Arizona and Florida laws contain no such exemption to allow local intervention to protect vulnerable consumers from deceptive and unfair food marketing.
The law in Arizona and the pending legislation in Florida, strip local governments not only of the ability to protect children from harmful business conduct, their expansive nature jeopardizes local control over many other important business conduct issues. These laws fundamentally change the rules of the game that local governments have depended on to maintain community character and to protect their communities.
Future of Obesity Litigation panel featuring PHAI’s Gottlieb and CSPI’s Gardner airs and is available online
Monday, February 28th, 2011
On January 21, 2011, Northeastern University Law Journal sponsored its third annual symposium. This year, it was entitled “From Seed to Stomach,” and addressed legal and regulatory aspects of obesity and food safety. The symposium was recorded for broadcast by CSPAN, which aired the material from February 25-28, 2011.
PHAI’s Executive Director, Mark Gottlieb, along with Stephen Gardner (Director of Litigation for the Center for Science in the Public Interest) appeared on a panel moderated by Stuart Rossman (Director of Litigation for the National Consumer Law Center) focused on the future of obesity litigaiton. The 80 minute panel is archived on CSPAN’s website. Topics addressed included the “cheeseburger bills,” the role of and use of arguments around choice and individual responsibility, consumer protection law, and the litigation against McDonald’s use of toy giveaways to sell Happy Meals.
Research upon which Mr. Gottlieb’s presentation was based was supported in part by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968) and by the National Institutes of Health (grant RO1 CA 87571).
Thursday, February 24th, 2011
Which state consumer protection provisions could be used to protect kids from junk food marketing?
The Alabama Deceptive Trade Practices Act (“DTPA”) prohibits deceptive acts including:
- “Passing off goods or services as those of another, provided that this section shall not prohibit the private labeling of goods or services.” Ala. Code § 8-19-5(1);
- “Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services.” Ala. Code § 8-19-5(2);
- “Causing confusion or misunderstanding as to the affiliation, connection, or association with, or certification by another, provided that this section shall not prohibit the private labeling of goods or services.” Ala. Code § 8-19-5(3); and
- “Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that they do not have or that a person has sponsorship, approval, status, affiliation, or connection that he or she does not have.” Ala. Code § 8-19-5(5).
The DTPA also contains a catch-all provision that prohibits “[e]ngaging in any other unconscionable, false, misleading, or deceptive act or practice in the conduct of trade or commerce.” Ala. Code § 8-19-5(27). When construing the DTPA courts are to give “due consideration and great weight” to interpretations of the Federal Trade Commission and the federal courts relating to relevant portions of the Federal Trade Commission Act. Ala. Code § 8-19-6.
Does Alabama law have any special protections for child consumers?
The DTPA does not have any special provisions dealing with child consumers. It does direct state courts to be guided by interpretations given by the FTC and the federal courts. The Federal Trade Commission has recognized an exception from the general “reasonable person” standard for FTCA actions when advertising is aimed at a vulnerable or particularly susceptible audience. Federal Trade Commission, See Deception Policy Statement, appended to In re Cliffdale Assocs., Inc., 103 F.T.C. 110, 177 (1984), http://www.ftc.gov/bcp/policystmt/ad-decept.htm. This lesser standard should be applied when children, who by their very nature are particularly susceptible, are the target audience of food advertising.
Who can bring a lawsuit?
The Attorney General, and individual consumers may file suit. Class actions brought by consumers are not permitted, but the Attorney General may file class actions in a representative capacity to recover actual damages on behalf of consumers. Ala. Code § 8-19-10(f).
What needs to be shown to make out a claim?
In order to make out a claim under the DTPA a plaintiff must allege that the defendant committed an act declared unlawful by the DTPA and that act caused the plaintiff monetary damages. Ala. Code § 8-19-10(a). While not all of the enumerated violations of the DTPA require that the unlawful act be committed knowingly, the statute contains a “defense” provision whereby a defendant may defend a claim “upon a showing by a preponderance of the evidence . . . that such person did not knowingly commit any act or knowingly engage in any activity which constitutes a violation of any provision of this chapter.” Ala. Code § 8-19-13. Thus, plaintiffs should be able to establish that the act was committed knowingly.
What are the powers of the Attorney General to protect kids from junk food marketing?
The Attorney General may conduct investigations and enforce the DTPA by seeking injunctive relief, monetary damages, and civil penalties of up to $25,000 for violations of an injunction and up to $2,000 for violations of the DTPA committed knowingly. Ala. Code § 8-19-4(a); Ala. Code § 8-19-8; Ala. Code § 8-19-11.
How does the law compensate consumers?
Prevailing consumers shall be awarded actual damages or $100, whichever is greater or up to three times any actual damages in the court’s discretion. Ala. Code § 8-19-10(a).
Who is liable for attorney’s fees?
The court shall award prevailing consumers costs and reasonable attorney’s fees. Ala. Code § 8-19-10(a)(3). The court also has the discretion to award a defendant reasonable attorney’s fees and costs upon a finding that an action was frivolous or brought in bad faith. Ala. Code. § 8-19-10(a)(3).
DISLCAIMER: This legal summary is for informational purposes only. Please consult an attorney for legal advice. All information reflects legal research conducted in 2010.
Supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968).
PHAI’s Gottlieb discusses litigation as an approach to reduce childhood obesity at Institute of Medicine Workshop
Wednesday, October 27th, 2010
On October 21, 2010, the Institute of Medicine’s Standing Committee on Childhood Obesity Prevention hosted a one-day workshop to examine “Legal Strategies in Childhood Obesity Prevention.”
Mark Gottlieb, Executive Director of the Public Health Advocacy Institute at Northeastern University School of Law, presented on a panel moderated by UC Berkeley law professor Stephen Sugarman entitled “Using Litigation to Make Change.” Gottlieb’s presentation focused on the underutilized legal tool of state consumer protection laws to stop unfair and deceptive practices that seek to sell junk foods and beverages to kids.
Michael Jacobson from the Center for Science in the Public Interest then discussed the litigation and litigation threats that his organization has been using for policy change.
The final panelist was Joseph Price, an attorney with Faegre and Benson in Minneapolis that defends the food industry. His presentation was critical of the use of litigation to fight childhood obesity and took time to focus on PHAI’s President, Dick Daynard, as well as those who seek to fight obesity who, themselves, are overweight or obese.
Discovery of Elevated Fructose Levels in Popular Soft Drinks Raises Important Legal Questions for Regulators and Consumers
Wednesday, October 27th, 2010
Prepared by Cara Wilking, J.D., Staff Attorney
What kinds of High Fructose Corn Syrup Are Generally Recognized as Safe for Use in the Food Supply?
Substances “reasonably expected to become a component of food” are food additives subject to premarket approval by the Food and Drug Administration (FDA), unless they are generally recognized as safe (GRAS). In 1983, the federal government listed high fructose corn syrup (HFCS) as GRAS, and the FDA affirmed that decision in 1996. Federal law defines HFCS as “a sweet, nutritive saccharide mixture containing either approximately 42 or 55 percent fructose.” Accordingly, HFCS typically is commercially available as HFCS-42 (42% fructose) or HFCS-55 (55% fructose). The basic rationale behind granting HFCS GRAS status was that it contains essentially the same ratio of fructose to glucose as table sugar (table sugar is 50% fructose and 50% glucose). Consistent with this logic, in its 1996 review of the GRAS status of HFCS, the FDA expressly rejected a proposal to expand the definition of HFCS to include “HFCS-90” (90% fructose), “primarily because HFCS-90 does not contain approximately equimolar amounts of glucose and fructose.” HFCS-90 does not have GRAS status, and FDA food labeling laws require that HFCS be listed as an ingredient separate from other sweeteners.
Do Fructose Levels in Popular Soft Drinks Containing HFCS Conform to the GRAS Standard?
In a recent study published in the journal Obesity, Ventura et al. purchased a mix of twenty three bottled and fountain dispensed sweetened-beverages and had them tested by an independent laboratory to determine, among other things, the fructose to glucose ratio of popular full-calorie soft-drinks. Laboratory testing revealed that bottled full-calorie Pepsi, Coca-Cola and Sprite had fructose estimates of 64-65%, well in excess of the upper-level of 55% fructose generally recognized as safe by the Food and Drug Administration. The study extrapolated from this finding that the elevated fructose levels equated to “18% higher fructose consumption than would be estimated assuming the value of 55% HFCS.” This preliminary finding has potentially important public health implications, and is important because a key part of the GRAS process is to estimate the population-wide consumption of the substance being evaluated. 
What Legal Issues Would Be Implicated by Elevated Fructose Levels in Popular Soft-Drinks?
Ventura et al.’s study reflects a very small sample size. Elevated fructose levels in popular soft drinks, if confirmed by additional testing implicate a number of legal issues for regulators and consumers.
Federal Prohibition of False and Misleading Food Labeling
The Federal Food Drug and Cosmetic Act prohibits false and misleading food labeling, and “food is misbranded if its labeling is false or misleading in any particular.” Federal law specifically defines HFCS “as mixture containing either approximately 42 or 55 percent fructose.” These are the only HFCS formulations that are GRAS and permitted for widespread use in the food supply without prior approval. Absent another source of fructose disclosed in the ingredients list, it would be false and misleading to list “HFCS” on the ingredient list when the product in fact contains a higher ratio of fructose to glucose than required by the legal definition of the ingredient. As such, under federal law the product would be misbranded.
Federal Prohibition of Adulterated Foods
The FDA summarized its adulterated food policy in a guidance document to the food industry as follows:
“Any substance added to a beverage or other conventional food that is an unapproved food additive (e.g., because it is not GRAS for its intended use) causes the food to be adulterated under section 402(a)(2)(C) of the FFDCA (21 U.S.C. 342(a)(2)(C)). Adulterated foods cannot be legally imported or marketed in the United States.”
HFCS that does not conform to the GRAS ratio of no more than 55% fructose is not GRAS for widespread use in the food supply. Under a plain reading of the FDA’s adulterated food policy, use of such a sweetener in a beverage would constitute the use of an unapproved food additive rendering the product adulterated.
False and Misleading Advertising
Federal and state laws generally prohibit false and misleading advertising. In 2008, the Corn Refiners Association launched a national multimedia advertising and public relations campaign called “Changing the Conversation about High Fructose Corn Syrup.” The central message of the campaign is that HFCS is essentially the same as table sugar with respect to the ratio of fructose to glucose and is therefore safe:
“High fructose corn syrup is nearly identical in composition to table sugar — both contain approximately 50% glucose and 50% fructose. Sugar and high fructose corn syrup have the same number of calories as most carbohydrates; both have four calories per gram. Because they are nearly compositionally equivalent, the human body cannot tell the difference between high fructose corn syrup and sugar.”
If additional testing of foods and beverages sweetened with HFCS reveals widespread actual fructose levels in excess of 55%, then the representation that HFCS is “compositionally equivalent” to table sugar could amount to false and misleading advertising requiring action by the Federal Trade Commission and State Attorneys General.
 US FDA, Determining the Regulatory Status of a Food Ingredient, http://www.fda.gov/Food/FoodIngredientsPackaging/FoodAdditives/ucm228269.htm (Oct. 8, 2010).
 21 CFR § 184.1866(a).
 Direct Food Substances Affirmed as Generally Recognized as Safe; High Fructose Corn Syrup, 61 Fed. Reg. Volume 165, 43448 (Friday, August 23, 1996) (to be codified at 21 CFR pt. 182-184).
 See US FDA, Letter to Food Manufacturers about “And/Or” Ingredient Labeling of Nutritive Sweeteners in Soft Drink Products, http://www.fda.gov/Food/LabelingNutrition/FoodLabelingGuidanceRegulatoryInformation/InspectionCompliance/WarningOtherLetters/ucm110252.htm (July 5, 2005).
 Emily E. Ventura, Jaimie N. Davis & Michael I. Goran, Sugar Content of Popular Sweetened Beverages Based on Objective Laboratory Analysis: Focus on Fructose Content, __Obesity__, 5 (2010) .
 Id. at 6.
 See id. at 5-6 (discuss the various health consequences of the metabolic process triggered by fructose vs. glucose).
 US FDA, Guidance for Industry: Estimating Dietary Intake of Substances in Food, http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodIngredientsandPackaging/ucm074725.htm (August 2006).
 US FDA, Guidance for Industry: Factors that Distinguish Liquid Dietary Supplements from Beverages, Considerations Regarding Novel Ingredients, and Labeling for Beverages and Other Conventional Foods, http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/DietarySupplements/ucm196903.htm (Dec. 2009).
 21 CFR § 184.1866(a).
 US FDA, Guidance for Industry: Factors that Distinguish Liquid Dietary Supplements from Beverages, Considerations Regarding Novel Ingredients, and Labeling for Beverages and Other Conventional Foods (Dec. 2009).
 Corn Refiners Association, Our Mission, http://www.sweetsurprise.com/about-us/our-mission.
 Corn Refiners Association , High Fructose Corn Syrup Myths, http://www.sweetsurprise.com/myths-and-facts/top-hfcs-myths.
Tuesday, December 8th, 2009
On December 2, 2009, Mark Gottlieb and Cara Wilking presented a poster to the Robert Wood Johnson Foundation’s Healthy Eating Research program grantees in Tucson, Arizona.
PHAI is exploring how state consumer protection laws can be used to address unfair and deceptive food and beverage marketing practices directed toward children or those who purchase food and beverages for children. Such state laws may permit private citizens, attorneys general or prosecutors to bring actions consumer fraud.
Recently, Connecticut state attorney general Richard Blumenthal launched an investigation into the Smart Choices labeling program. The eight large food companies that participated in the labeling program (ConAgra Foods, General Mills, Inc., Kellogg Company, Kraft Foods, PepsiCo, Inc., Riviana Foods, Sun-Maid and Unilever) have agreed to remove the program’s logo from their products, at least during the investigation.
PHAI’s findings will be available by the Fall of 2010.