NESTLE FACING CLASS-ACTION FALSE ADVERTISING SUIT OVER BOOST GLUCOSE CONTROL DRINKS

Nestle Healthcare Nutrition, Inc. (Nestle) is facing a class-action lawsuit over claims that its Boost Glucose Control drinks help diabetic consumers manage their blood sugar levels. The case, Owen v. Nestle Healthcare Nutrition, Inc., was filed in New Jersey District Court. The suit alleges that Nestle makes druglike claims about the drinks, which have not been tested or approved by the FDA, and that the products mislead consumers into believing that the drinks help control blood glucose levels when in fact Nestle’s own study revealed they do not.

Plaintiff’s lawsuit involves Nestle’s BOOST-brand Glucose Control over-the-counter drinks with the name “Glucose Control.” As described in his complaint, the products are labeled “Glucose Control” and prominently state in bold, capitalized font that they “HELP MANAGE BLOOD SUGAR” and/or that they are “DESIGNED FOR PEOPLE WITH DIABETES.”

Plaintiff, a diagnosed diabetic, purchased a 24-pack of BOOST Glucose Control in or around April 2022 from Amazon for $38.99. He claims that the products did not “control” his Glucose or “manage his blood sugar” as he expected it would in light of the product’s labeling. To quote from the Complaint, “Defendant’s prominent and systematic mislabeling of the Products and its false and deceptive advertising form a pattern of unlawful and unfair business practices that harms the public and, if unstopped, could continue to lead to substantial harm.” His proposed class-action suit includes claims for breach of warranty, breach of implied warranty, unjust enrichment, and violations of New Jersey consumer protection laws.

In his complaint, Owens specifically maintains that Nestle’s Boost products make unproven health claims. "Critically, Nestle's marketing and labeling are tantamount to express and/or implied disease claims relating to the prevention and control of diabetes," the suit alleges. "Such claims made on dietary supplements are prohibited as a matter of law and further render the claims misleading and deceptive."

Under Federal regulations, specifically 21 C.F.R. § 101.14(a)(1), a health claim is “any claim made on the label or in labeling of a food, including a dietary supplement, that expressly or by implication . . . characterizes the relationship of any substance to a disease or health-related condition.” Thus, claims on food labels are governed by FDA's health claims regulations if they include either express or implied references to both a substance and a disease. Pursuant to 21 C.F.R. § 101.14(e), health claims may not be made unless such claims are expressly reviewed and preauthorized by the FDA. A product that makes unauthorized health claims is considered misbranded pursuant to 21 U.S.C. § 343(r).

In his complaint, Plaintiff contended that consumers could understand Nestle’s representations to mean that they can use the products to effectively control glucose levels and manage blood sugar. For instance, he alleges that the name of the Product, “BOOST Glucose Control,” is an implicit or express health claim because it purports to control a health-related condition, namely the inability to control glucose. He further maintains that Nestle’s statement that the products are “DESIGNED FOR PEOPLE WITH DIABETES” is an implicit or expressed health claim because it denotes a relationship between the drink and diabetes.

Owens’ complaint further alleges that Nestle’s product deceptively represents that they control and manage glucose. "Representations that the products control glucose and 'help manage blood sugar' conveys to the consumer that the products affirmatively do something to control blood sugar: that whatever one's blood glucose is at the time they take the products, drinking the products will make it better," the complaint states. "But this is false, as demonstrated by the clinical study that Nestle discusses on a part of its website."

NY COURT DISMISSES SUIT ALLEGING KELLOGG’S POP-TART LABEL MISLED CONSUMERS

A New York federal judge recently dismissed a class-action lawsuit accusing Kelloggs of misleading consumers by exaggerating the amount of strawberries in its Frosted Strawberry Pop-Tarts through materially misleading labeling. According to US District Judge Andrew Carter, “A reasonable consumer is unlikely to purchase a toaster pastry coated in frosting exclusively for the nutritional value of strawberries in its fruit filling.” In Brown v Kellogg Sales Co., plaintiff Kelvin Brown, a resident of the Bronx, New York, filed a class-action suit against Kellogg Sales Company, alleging that Kellogg participated in deceptive business practices and/or false advertising by overexaggerating the amount of strawberries in its well-known “Frosted Strawberry Pop-Tarts” breakfast treat through materially misleading labeling. The complaint alleged violations of the New York General Business Law, negligent misrepresentation, breach of implied and express warranty, violation of the Magnuson-Moss Warranty Act, fraud, and unjust enrichment. As detailed in the suit, the front label on the packaging contains representations, including (1) the words “Frosted Strawberry,” (2) an image of half of a fresh strawberry, and (3) an image of the Product depicting “a dark red fruit filling.” Plaintiff alleged that these representations are false and misleading because “they give consumers the impression the fruit filling contains more strawberries than it does” and “creates an erroneous impression that strawberries are present in an amount greater than is the case.” The front label includes strawberries but omits pears and apples, “even though these fruits are stated elsewhere on the label - in the small print on the ingredient list,” the complaint alleged. Brown further asserted that the front label also fails to inform customers of the percentage of strawberries in the Product relative to pears and apples. He also maintained that because apples and pears are not disclosed on the front packaging, the product is unable to provide the taste and health benefits inherent to strawberries and consumers end up paying for the product at a higher price than they would absent the alleged misrepresentations. On March 31, 2022, Judge Carter granted Kellogg's motion to dismiss, concluding that Brown failed to plead that the challenged representations on the front label are materially misleading.

As Judge Carter explained, a claim for false advertising or deceptive business practices under the New York General Business Law must adequately allege that the deceptive act or practice was “likely to mislead a reasonable consumer acting reasonably under the circumstances.” He went on to find that viewing the product label in context, the representations are “simply not deceptive.”

“Courts typically find misleading representations about ingredients when the product label explicitly asserts that it is made with a specific ingredient or specifies the quantity of an ingredient when the ingredient is not predominant in the Product,” Judge Carter wrote. “The front packaging does not contain any content that would suggest to a reasonable consumer that strawberries are the sole ingredient in the Product.”

Judge Carter further noted that the photo of the fresh half strawberry must be viewed in context. “No reasonable consumer would see the entire product label, reading the words ‘Frosted Strawberry Pop-Tarts’ next to a picture of a toaster pastry coated in frosting, and reasonably expect that fresh strawberries would be the sole ingredient in the Product,” he wrote. "In fact, strawberries are a common food flavor, whether artificial or otherwise, especially in processed snack foods like Pop-Tarts," he added.

A federal court judge in Chicago recently dismissed a similar suit, Chiappetta v. Kellogg Sales Co., involving Unfrosted Strawberry Pop-Tarts. The plaintiff in that suit alleged that the packaging was deceptive because it showed half of a strawberry and red fruit filling, which misled consumers in believing the product contains only strawberries, when it also contains dried pears, dried apples and artificial food dye.

The court rejected the allegations and dismissed the suit. Judge Marvin E. Aspen wrote “[t]he front of the Product packaging does not state or suggest anything about the amount of strawberries in the Product’s filling or guarantee that the filling contains only strawberries and Chiappetta concedes that the filling contains some strawberries. Accordingly, [the plaintiff’s] interpretation of the label is unreasonable and unactionable.”

BABY FOOD COMPANIES FACE CLASS ACTION SUITS REGARDING TOXIC CHEMICALS

In the wake of a congressional report revealing high levels of heavy toxic metal contamination in several brands of popular baby food, class-action lawsuits are mounting. Most recently, several plaintiffs filed suit against Gerber Products Company in the U.S. District Court for the District of New Jersey.

In February, the U.S. House of Representative’s Subcommittee on Economic and Consumer Policy issued a report, entitled “Baby Foods Are Tainted with Dangerous Levels of Arsenic, Lead, Cadmium, and Mercury.” The report concluded that many commercial baby foods are tainted with significant levels of toxic heavy metals, including arsenic, lead, cadmium, and mercury. “Exposure to toxic heavy metals causes permanent decreases in IQ, diminished future economic productivity, and increased risk of future criminal and antisocial behavior in children,” the report stated. “Toxic heavy metals endanger infant neurological development and long-term brain function.” The report recommended that baby food manufacturers should be required by the FDA to test their finished products for toxic heavy metals and be required by the FDA to report levels of toxic heavy metals on food labels. The subcommittee also advised that the FDA should set maximum levels of toxic heavy metals permitted in baby foods. Gerber Products (Gerber) is one of several baby food manufacturers facing consumer class-action lawsuits alleging that the company's baby food products contain unsafe levels of toxic heavy metals. According to various media reports, nearly 70 lawsuits have been filed to date. In Wallace et al. v. Gerber Products Company, the plaintiffs allege that Gerber has engaged in deceptive trade practices with respect to the marketing and sale of its baby food products (the “Baby Foods”) by failing to disclose that they contain levels of toxic heavy metals, including arsenic, lead, cadmium, and mercury. According to the lawsuit, “Gerber claims on its website that ‘We have among the strictest standards in the world. From farm to highchair, we go through over 100 quality checks for every jar.’ However, the plaintiffs allege that “Gerber’s packaging labels do not list, let alone warn, potential customers that the Gerber Baby Food Products contain toxic heavy metals.” The suit includes claims for consumer fraud, breach of warranty, and unjust enrichment. It seeks damages, as well as injunctive and declaratory relief. In support of the claims, the complaint cites the House Subcommittee Report, which found that Gerber “demonstrated its willingness to use ingredients that contained dangerous lead levels.”

Beech-Nut and Campbell Soup Company, the maker of Plum Organics baby food, are facing similar lawsuits. In defense of the suits, the manufacturers maintain that their products meet or exceed acceptable levels of heavy metals. With no federal standards for baby food, the companies point to those set by states like California, the European Union, and the World Health Organization. "Given the lack of specific FDA guidance on baby food, Campbell used standards from California’s Proposition 65, the EU and the WHO, along with general guidance from the FDA on lead not specific to baby foods—to develop a testing protocol for evaluating whether heavy metals in Plum Organics’ products exceeded levels that independent authorities had determined to be acceptable,” Campbell said in a statement. A Gerber spokesman said that the company’s baby food is safe, and that babies’ health and nutrition remain their priority.

BABY FOOD SAFETY ACT OF 2021

In the wake of the report, several members of Congress introduced the Baby Food Safety Act of 2021. To address heavy metals in baby foods, the proposed bill would require manufacturers and the FDA to take the following actions:

• Set maximum levels of inorganic arsenic (10 ppb, 15 ppb for cereal), lead (5 ppb, 10 ppb for cereal), cadmium (5 ppb, 10 ppb for cereal), and mercury (2 ppb) allowed in baby food that manufacturers would have to meet within one year.
• Require those levels to be lowered further within two years through FDA guidance, and again after three years through regulation.
• Require manufacturers to test their final products – not just ingredients – for toxic heavy metals.
• Require manufacturers to post the results of their product testing online twice per year.
• Establish a public awareness campaign through the CDC to highlight the risks posed by toxic heavy metals in baby food.
• Authorize $50 million for research on agricultural methods of reducing toxic heavy metals in crops.

FDA “CLOSER TO ZERO” BABY FOOD ACTION PLAN

The FDA has also committed to taking regulatory action. Last April, it released an action plan for baby foods called “Closer to Zero,” which lays out the agency’s approach to reducing exposure to toxic elements in foods commonly eaten by babies and young children to the lowest possible levels. “We recognize that Americans want zero toxic elements in the foods eaten by their babies and young children. In reality, because these elements occur in our air, water and soil, there are limits to how low these levels can be. The FDA’s goal, therefore, is to reduce the levels of arsenic, lead, cadmium and mercury in these foods to the greatest extent possible,” the FDA stated. “We are also sensitive to the fact that requiring levels that are not currently feasible could result in significant reductions in the availability of nutritious, affordable foods that many families rely on for their children. Our plan, therefore, outlines a multi-phase, science-based, iterative approach to achieving our goal of getting levels of toxic elements in foods closer to zero over time.” The FDA’s action plan includes several phases and will be carried out over the next three to four years. The plan calls for the FDA to evaluate the scientific basis for action levels in consultation with stakeholders; set action levels; encourage adoption of best practices by the industry; and monitor progress.

SUGARY CEREAL MAKERS FACING CLASS-ACTION SUITS OVER HEALTH AND NUTRITION CLAIMS

Post Consumer Brands recently agreed to pay $15 million to resolve allegations it misled consumers by using health and nutrition claims to advertise several of its high-sugar cereals. Post is the latest cereal maker to face class-action lawsuits alleging false advertising claims. False or misleading advertising claims can be brought under a number of state and federal laws. The Federal Trade Commission Act prohibits unfair or deceptive advertising, which means that advertising must tell the truth and not mislead consumers. A claim can be misleading if relevant information is left out or if the claim implies something that's not true. In addition, claims must be substantiated, especially when they concern health, safety, or performance.

With regard to food advertising, the FDA also has enforcement authority. The Federal Food, Drug, and Cosmetic Act (FDCA) prohibits "labeling [that] is false or misleading in any particular." Additionally, the Nutrition Labeling and Education Act of 1990 (NLEA) allows only FDA-approved nutrient content claims and health claims to appear on food labels. Since 1954, the FTC and the FDA have operated under a Memorandum of Understanding, under which the FTC has assumed primary responsibility for regulating food advertising, while FDA has taken primary responsibility for regulating food labeling.

States also have laws prohibiting false advertising. For instance, the New Jersey Consumer Fraud Act makes it unlawful to use any deception, fraud, false promise, or misrepresentation in connection with the sale or advertisement of any merchandise or real estate. The class-action lawsuit against Post alleged that while the company marketed its cereals as healthy, wholesome, and nutritious, they contained high amounts of sugar, which is associated with numerous health issues. According to the plaintiffs, Post “leverages a policy and practice of marketing high-sugar cereals with health and wellness claims.” Post unsuccessfully sought to dismiss the suit, arguing that the statements were truthful, authorized under FDA regulations, and/or nonactionable puffery. Judge William H. Orrick disagreed, concluding that while statements such as “No High Fructose Corn Syrup,” might be literally true, that “does not mean that those statements cannot be found to convey a false or misleading impression concerning the overall health or nutrition benefit of the product when read together with the other challenged statements found on the same label and in light of the allegedly excessive amount of added sugar in those products.” Under the terms of the recent settlement, Post must remove the following phrases — “Less Processed,” “No High Fructose Corn Syrup,” “‘Natural,” “Healthy,” “Smart,” “Nutritious,” and “Wholesome” — on products in which more than 10 percent of the calories come from added sugar. Kellogg Co. and General Mills, Inc. have faced similar lawsuits. Last fall, Kellogg Co. agreed to pay approximately $30 million to settle a class action lawsuit alleging it misled consumers by using health and nutrition claims in connection with its Raisin Bran, Frosted Mini-Wheats, Smart Start, Crunchy Nut and Krave cereal brands, as well as its Nutri-Grain brand of snack bars. In addition to the monetary settlement, Kellogg agreed to no longer use phrases such as “healthy,” “wholesome” and “nutritious” on the products for at least three years. The company also agreed to remove or limit “heart health” claims on its Smart Start and Raisin Bran cereals, refrain from using the phrase “lightly sweetened” from Frosted Mini-Wheats and Smart Start, and stop using “no high-fructose corn syrup” to advertise its Nutri-Grain products. While class-actions increasingly target food manufacturers making health and nutrition claims, such suits are not always successful. In 2019, General Mills was able to secure the dismissal of a similar suit alleging it misled consumer about the sugar content of several popular cereals. “Statements that these products are ‘healthy,’ ‘nutritious,’ or ‘wholesome’ are false, or at least highly misleading, because, due to their high sugar content, consumption of these products is decidedly unhealthy,” the class-action suit argued. A California federal judge sided with the cereal company, concluding that consumers could not “plausibly be misled” because General Mills’ labels were truthful. “Plaintiffs cannot plausibly claim to be misled about the sugar content of their cereal purchases because defendant provided them with all truthful and required objective facts about its products, on both the side panel of ingredients and the front of the products’ labeling,” U.S. District Judge Jeffrey White wrote. “The actual ingredients were fully disclosed and it was up to the plaintiffs, as reasonable consumers, to come to their own conclusions about whether or not the sugar content was healthy for them.”

TARGET ARGUES CONSUMER DECEPTION IS IMPLAUSIBLE FOR BRIGHT RED, ZERO-CALORIE, WATER ENHANCER

A federal class action complaint, filed on June 22, 2022, alleges the words “Natural Flavor With Other Natural Flavor” directly below “Fruit Punch” render the use of “artificially flavored” deceptive on Target Corporation’s label for Market Pantry brand liquid beverage concentrate water enhancer containing malic acid as the second-most predominant ingredient (after water). This is similar to a class-action lawsuit filed against Publix Super Markets, Inc. for their “strawberry watermelon” water enhancer. In both cases, the plaintiffs allege that testing detected DL-malic acid, which is an artificial form of malic acid that impacts the characterizing flavor of the products and, therefore, the products should have been labeled as “artificially flavored” or “artificial” to avoid misleading consumers and to comply with 21 CFR 101.22(i)(2). In a memorandum filed in court last June, Target disputes whether the plaintiff has plausibly alleged that the malic acid in the product acts as a “flavor” and that it is “artificial.” In addition to these assertions, as wells as the related arguments over distinctions between a “flavor enhancer” and a “flavor” under FDA’s regulations, which courts have found cannot be resolved on a motion to dismiss, Target has also raised arguments for dismissal based on the assertion that it never made any representation on the product’s label or elsewhere that the water enhancer was all-natural or free of artificial flavors. Specifically, the memorandum argues that the artificial flavor status of malic acid is immaterial because the omission of an “artificially flavored” statement, even if it were required for malic acid (Target argues it is not), does not transform the FDA-mandated statement “Natural Flavor With Other Natural Flavor” into a claim that the water enhancer is “all natural,” nor would it lead a reasonable consumer to assume that a shelf-stable, bright red “fruit punch” concentrate is free of artificial ingredients.

FDA EXPANDS EFFORTS TO CURTAIL USE OF TOBACCO PRODUCTS

Last April the FDA announced it is committed to advancing two tobacco product standards to significantly reduce disease and death from using combusted tobacco products, the leading cause of preventable death in the U.S. The FDA is working toward issuing proposed product standards within the next year to ban menthol as a characterizing flavor in cigarettes and ban all characterizing flavors (including menthol) in cigars; the authority to adopt product standards is one of the most powerful tobacco regulatory tools Congress gave the agency. The FDA’s statement claimed this decision is based on clear science and evidence establishing the addictiveness and harm of these products and builds on important, previous actions that banned other flavored cigarettes in 2009. In a statement the FDA asserted that “banning menthol—the last allowable flavor—in cigarettes and banning all flavors in cigars will help save lives, particularly among those disproportionately affected by these deadly products. With these actions, the FDA will help significantly reduce youth initiation, increase the chances of smoking cessation among current smokers, and address health disparities experienced by communities of color, low-income populations, all of whom are more likely to use these tobacco products.”

The agency is taking action to reduce tobacco addiction and curb deaths. The FDA asserts that the evidence exists that a menthol ban will help people quit. Studies show that menthol increases the appeal of tobacco and facilitates progression to regular smoking, particularly among youth and young adults. Menthol masks unpleasant flavors and harshness of tobacco products, making them easier to start using. Tobacco products with menthol can also be more addictive and harder to quit by enhancing the effects of nicotine. “Despite the tremendous progress we’ve made in getting people to stop smoking over the past 55 years, that progress hasn’t been experienced by everyone equally,” said Mitch Zeller, J.D., director of the FDA’s Center for Tobacco Products. “These flavor standards would reduce cigarette and cigar initiation and use, reduce health disparities, and promote health equity by addressing a significant and disparate source of harm. Taken together, these policies will help save lives and improve the public health of our country as we confront the leading cause of preventable disease and death.” If implemented, the FDA’s enforcement of any ban on menthol cigarettes and all flavored cigars will only address manufacturers, distributors, wholesalers, importers and retailers. The FDA cannot and will not enforce against individual consumer possession or use of menthol cigarettes or any tobacco product. The FDA will work to make sure that any unlawful tobacco products do not make their way onto the market.

These actions are an important opportunity to achieve significant, meaningful public health gains and advance health equity. The FDA is working expeditiously on the two issues, and the next step will be for the agency to publish proposed rules in the Federal Register allowing an opportunity for public comment.

The agency also recognizes the importance of ensuring broad and equitable access to all the tools and resources that can help currently addicted smokers seeking to quit, including those who smoke menthol cigarettes and would be impacted by these public health measures. The FDA also remains focused on its regulatory oversight of e-cigarettes and other electronic nicotine delivery systems (ENDS). The Center for Tobacco Products recently provided an update on its ongoing work of conducting the premarket review of ENDS and other tobacco product applications, and has issued warning letters to ENDS product manufacturers and retailers who continue to sell products that are illegally on the market. The FDA has also made a significant investment in a multimedia e-cigarette public education campaign. The campaign targets nearly 10.7 million youth aged 12-17 who have ever used e-cigarettes or are open to trying them, and highlights information about the potential risks of e-cigarette use.

The 2009 Tobacco Control Act (TCA) did not include menthol in its ban on characterizing flavors in cigarettes, leaving menthol cigarettes as the only flavored combusted cigarettes still marketed in the U.S. The law instructed the FDA to further consider the issue of menthol in cigarettes. Since then, the FDA asserts it has sought input from an independent advisory committee as required by the TCA External Link Disclaimer, and further demonstrated its interest by issuing an Advance Notice of Proposed Rulemaking, undertaking an independent evaluation and supporting broader research efforts—all to better understand the differences between menthol and non-menthol cigarettes and the impact of menthol on population health.

In the U.S., it is estimated that there are nearly 18.6 million current smokers of menthol cigarettes. But use of menthol cigarettes among smokers is not uniform: out of all Black smokers, nearly 85% smoke menthol cigarettes, compared to 30% of White smokers who smoke menthols. In addition, among youth, from 2011 to 2018, declines in menthol cigarette use were observed among non-Hispanic White youth but not among non-Hispanic Black or Hispanic youth.

After the 2009 statutory ban on flavors in cigarettes other than menthol, use of flavored cigars increased dramatically, suggesting that the public health goals of the flavored cigarette ban may have been undermined by continued availability of these flavored cigars. Flavored mass-produced cigars and cigarillos are combusted tobacco products that can closely resemble cigarettes, pose many of the same public health problems, and are disproportionately popular among youth and other populations.

Nearly 74% of youth aged 12-17 who use cigars say they smoke cigars because they come in flavors they enjoy. Among youth who have ever tried a cigar, 68% of cigarillo users and 56% of filtered cigar users report that their first cigar was a flavored product. Moreover, in 2020, more young people tried a cigar every day than tried a cigarette.

STATE LAWS ON POST-CONSUMER RECYCLED CONTENT ‘MOVING FASTER THAN INDUSTRY’

In a recent article published in Food Navigation USA, a detailed portrait was laid out about the supply chain challenges facing a growing market for post-consumer recycled content of various plastics.

State-mandated requirements for post-consumer recycled content are coming into force, but is the market ready?

Industry experts say that a push to mandate demand for this post-consumer recycled content – reprocessed from household or commercial packaging – is just one component of a bigger formula that must factor in supply chain challenges, fully recyclable packaging, total carbon footprint and product integrity, among other considerations.

Three states have already passed legislation in the drive to reduce dependence on virgin plastics (often from restrictive and unreliable markets) and buttress domestic recycling economies. California’s Plastic Minimum Content Standards law (AB 793) went into effect earlier this year, requiring plastic beverage containers covered by the bottle deposit program to contain at least 15% PCR by 2022, 25% by 2025 and 50% by 2030. The state already mandates minimum recycled content for glass and rigid plastic packaging containers. Beginning in 2023, Washington State will start phasing in PCR standards for plastic beverage bottles, plastic trash bags and plastic bottles for household cleaning and personal care products. New Jersey is scheduled to follow suit in 2024, with requirements for non-beverage plastic containers, plastic beverage containers and availability of suitable recycled material, infrastructural capacity and the progress made by beverage manufacturers. The short supply of virgin resins over the last couple of years had already produced a spike in advanced purchases and therefore the price of PCR pellets.

Mike Meirovitz, director of government relations at the Council for Responsible Nutrition (CRN) told Nutra Ingredients-USA that the council will work with “federal and state policymakers to find solutions that incentivize progress in these areas” but that it is “also mindful that any new compliance requirements should not be unduly Federal solutions are certainly preferable to inconsistent state mandates that create a patchwork of requirements that disrupt distribution and may be inconsistent with one another.”

In August, the Northeast Recycling Council and the Northeast Waste Management Officials’ Association published a model PCR law to lay the groundwork for a harmonized regional approach. The covered plastic packaging and products include rigid plastic containers, single-use bags and single-use containers used for food, beverages, household cleaning and personal care products.

DELAWARE COURT SIDES WITH SUGAR COMPANIES IN LAWSUIT BROUGHT BY THE JUSTICE DEPARTMENT

In September the US District Court judge in federal court in Delaware blocked an attempt by the Justice Department to oppose a sugar industry “mega deal” it argued would create a cozy duopoly from US Sugar's proposed acquisition of its rival Imperial Sugar. After a trial that lasted four days the court, specifically U.S. District Judge Maryellen Noreika issued a judgment in favor of the defendants that their acquisition of Imperial Sugar would not violate Section 7 of the Clayton Act, which is the federal antitrust law. The judge's ruling is currently under seal in order to protect sensitive and competitive information. The loss that had been filed at the end of 2020 in Delaware by the Justice Department alleging that the proposed transaction would leave an overwhelming majority of refined sugar sales across the southeast and the hands of only two companies. The Justice Department asserted the claim that if the transaction was allowed to proceed American businesses and consumers would pay more for refined sugar a significant input from any foods and beverages. The complaint from the Justice Department also alleged that if the proposed acquisition was allowed to proceed the combined forces of united and Imperial along with one other sugar company, American sugar refining would account for nearly 75% of sugar sales across the southeast.

BIDEN ADMINISTRATION ISSUES REPORT ON HEALTH AND NUTRITION

In September the Biden administration issued a 44-page report entitled National Strategy on Hunger, Nutrition and Health. The report divided the national strategy that is outlined into five what it referred to as pillars. Pillar number one was to improve food access and affordability including assisting individuals in urban suburban rural and tribal communities and territories to access and afford foods. Pillar number 2 is to integrate nutrition and health by prioritizing the role of nutrition and food safety and security and overall health, this would include disease prevention and management and to ensure that the health care system addresses a nutritional need of everyone. Pillar number 3 is to empower consumers to make and have access to healthy choices. The report calls for fostering environments and enable everyone to make informed health choices increasing access to healthy food, encouraging healthy workplaces and school policies, and to invest in public education campaigns that are culturally appropriate and resonate with specific communities. Pillar number 4 is to support physical activity for everyone by making it easier for people to be more physically active in part by ensuring that everyone has access to safe places to be active by increasing awareness of the benefits of physical activity and to conduct research on and measure physical activity. The last of the five pillars is to enhance nutrition and food security research by improving nutrition metrics, data collection, and research to inform.