FEDERAL COURT
It Has to be Original: Smuckers accuses Trader Joe's of Trademark Infringement
Trader Joe's faces a lawsuit regarding one of its new store brand products. The lawsuit, filed October 13 in Ohio, is a challenge over its crustless peanut butter and jelly sandwiches. J.M. Smucker Co., the creator of Uncrustables, says the item at Trader Joes infringes on its trademark. Smucker says the new item copies both the packaging of Smucker’s Uncrustables and its signature round shape with crimped edges.
This is similar to a case filed in May by cookie maker Mondelez who is suing Aldi. Mondelez says the ...Aldi cookies and crackers have nearly identical packaging to the national brands produced by Mondelez. The Mondelez v. Aldi case is still active in Illinois Federal Court.
WHITE HOUSE
The China-US trade Battle Heats Up and a Comparison of IEEPA vs. Section 232 Tariffs
Tensions spike again between the U.S. and China regarding trade policies. On October 10, President Trump threatened an additional 100 percent tariff on all Chinese imports. This move comes after Chinese officials announced limits on rare earth minerals essential in technology production. China is also proposing mandatory licensing of companies exporting any products containing rare minerals originating in China. President Trump is planning to meet with Chinese President Xi while attending the Asia-Pacific Economic Cooperation meeting on October 31 in South Korea.
In addition, China announced on October 10 that it will charge U.S. ships for docking at Chinese ports. These fees take effect on October 14, which is the same day the U.S. begins charging similar port fees on Chinese Ships.
On November 5, the Supreme Court will ... hear oral arguments on the appeal of the combined cases deciding if tariffs issued under the International Emergency Economic Powers Act (IEEPA) are lawful. These include the reciprocal tariffs announced by President Trump last April ranging from 10-15 percent for most countries and higher for India and Brazil (50 percent).
This month action has occurred on several tariffs issued under Section 232 of the Trade Expansion Act of 1962, commonly referred to as Section 232 Tariffs or Section 232 duties. In September, The White House announced new Section 232 Tariffs on brand name pharmaceuticals and heavy-duty trucks. The pharmaceutical tariffs have been delayed while negotiations continue with pharmaceutical companies.
Section 232 Tariffs are used to target products that pose a threat to National Security. Whereas the IEEPA Tariffs are meant to respond to national emergencies. Fees imposed on goods covered by Section 232 are exempt from the country wide tariffs imposed under the IEEPA. The Supreme Court is deciding on the constitutionality of the IEEPA Tariffs. Section 232 Tariffs would not be impacted.
Examples of Section 232 tarrifs include tariffs on steel which jumped from 25 percent to 50 percent this June, auto parts for which a 25 percent tariff was imposed in June, and softwood timber which had a 10 percent tariff imposed in June. The White House says it is investigating other possible products to tariff, including critical minerals and semiconductors.
FOOD AND DRUG ADMINISTRATION
Get the Lead out - More Products Show Excessive Levels of the Toxin
The FDA has expanded its public health alert regarding cinnamon spices found to have unsafe quantities of lead. This month, the FDA added HAETAE-brand and Roshni-brand ground cinnamon to the alert. This is a continuation of a public health alert which originated in July 2024 warning the public of several companies whose products tested for unacceptable levels of lead. Currently 16 companies are on the FDA’s list and not all of the cinnamon has been recalled. ...
In 2023, there was a mandatory recall of children's fruit pouches for lead contamination. Sixty-four children were exposed to lead poisoning due to unsafe levels in multiple brands of cinnamon fruit and cinnamon apple pouches. In addition, high levels of chromium were also found in the pouches.
In May, The Publix Grocery chain initiated a voluntary recall of their store brand GreenWise Pear, Kiwi, Spinach & Pea baby food following routine testing. This August, Consumer Reports magazine published an article rating baby food manufacturers on their transparency about the levels of toxic elements in their products. California’s baby food law has required monthly testing of baby food for toxins since 2024.
Starting this past January, manufacturers are required to provide details of toxic elements in each baby food product sold in California. Federal guidance reduced acceptable levels of lead in baby and children’s food products as part of its Closer to Zero initiative. The initiative published draft guidance in 2023 and issued the final guidance for action in January 2025. Toxic elements are found in baby food as part of natural soil, air, and water conditions.
STATEWIDE NEWS
Oregon First to Enact Extended Producer Responsibility Law
Of the seven states that have passed Extended Producer Responsibility (EPR) laws, Oregon is the first state to put the laws into action. Passed in 2021, The Plastic Pollution and Recycling Modernization Act requires digital labeling to advise consumers on recycling information. In August, the National Association of Wholesaler-Distributors sued the state over the constitutionality of the regulation saying it prohibits interstate commerce. The lawsuit also challenges aspects of how the producer responsibility organization will operate.
In California, draft regulations have been issued in relation to the Plastic Pollution Prevention and Packaging Producer Responsibility Act aimed at changing the state’s ...approach to single-use packaging and plastic single-use food service ware. The draft is now open for public review and comment. In addition, the Program Environmental Impact Report is also open for review and comment. Other states with EPR laws regarding packaging include Maryland, Maine, Colorado, Minnesota, and Washington.
LABELING
FDA Front of Pack Nutrition Labeling
Front-of-package nutrition labeling was proposed by the FDA in Jan. 2025. This would require a small nutrition information box on the face of packaged foods indicating levels of sodium, saturated fat, and added sugar. The comment period on the proposed regulatory change closed on July 15. The next step in the process is for the FDA to review the comments before proceeding with issuing new guidance or implementing new rules.
Ultra-Processed
The FDA is investigating food products which could be defined as ultra-processed (UPFs) along with their role in the rise of disease and the decline in the population’s overall health. A two-step approach is now underway. First, the government is seeking to define UPFs. A public comment period closed on September 23, and those comments are now being considered. Second, the FDA has partnered with the National Institutes of Health to conduct further research on UPFs. This joint Nutrition Regulatory Science Program is examining how UPFs may affect people’s health.
Tylenol/Acetaminophen
On September 22, the FDA announced it is initiating the process for a label change for acetaminophen. The agency wants labeling to include the possibility that use of acetaminophen by pregnant women may be associated with an increased risk of neurological conditions, such as autism and ADHD. To mandate a label change, the FDA notifies the manufacturer. At that point the manufacturer can submit to the proposed label change or provide a rebuttal. No further timelines are available at this time from the FDA.
Gluten
Current guidance on labeling items that contain gluten has not changed. The issue of gluten labeling has been reignited in the recent Make America Healthy Again (MAHA) Strategy Report. The MAHA Strategy Report tasks the FDA with improving transparency around the disclosure of ingredients that ...affect certain health conditions, including gluten. The report focused on the need for research and voluntary measures in the marketplace but did not propose specific regulatory changes.
Currently, gluten is not identified as a major allergen requiring specific labeling. Wheat, which contains gluten, does require labeling. Other grains that contain gluten, such as rye and barley, are not mandated to be listed under allergen warnings. A bill proposed in 2023, titled the Food Labeling Modernization Act, would have mandated disclosure of all ingredients containing gluten. That bill failed to pass Congress and is no longer active.
Healthy
Twenty-seven months remain for food manufacturers to bring food labels into compliance with latest standards to earn the right to bear the label “healthy.” In December 2024, the FDA finalized the rule with new criteria.
The updated standards reflect changes in ...nutritional science that encourage the consumption of healthy fats and the reduction of added sugar.
The new criteria continue to limit saturated fat and sodium but include limits on added sugar while discarding parameters on total fat and dietary cholesterol.
In addition, the new standards no longer require a minimum amount of nutrients such as vitamin C or Iron. Instead, foods must come from a list of recommended food groups such as vegetables, whole grains, and proteins. The deadline for compliance is February 25, 2028.
FOOD DYES
Banning Orange B And Citrus Red No. 2
The phasing out of petroleum-based food dyes is underway. In April, the FDA announced it will begin work to ban artificial food dyes both through regulatory action as well as urging voluntary steps by food manufacturers. The FDA has proposed revoking its ...regulatory authorization for Orange B food dye, and the comment period on that proposal closed this week. Orange B has not been used in the food industry since 1978 when the additive was linked to cancer but had previously been used in hot dog and sausage casings.
The FDA has also started the process to revoke its authorization for Citrus Red No. 2. Citrus Red No. 2 is used on the exterior of oranges. Oranges which have been dyed are not labeled in any way to inform consumers of the additive. Red Citrus No. 2 is already banned in California and Arizona. FDA bans are expected on both of these dyes in the coming months.
Other Petroleum-Based Food Dyes
The FDA is working with food suppliers to voluntarily remove petroleum-based food dyes from the marketplace. These dyes include Blue Dyes No. 1 and 2, Green Dye No. 3, Red Dye No. 40, and Yellow Dyes No. 5 & 6. The FDA has encouraged the industry to remove these dyes by the end of 2026.
In particular, the administration would like to see these dyes removed from school menus by the start of the 2026 school year. The FDA is making this a voluntary action and has not initiated any regulatory action
...
There is a proposed bill, the Ban Harmful Dyes Act, authored by NY Democratic congresswoman Grace Meng, which would push this beyond voluntary measures but is in the early stages and is not showing a strong likelihood of becoming law.
Additives in TX, LA, WV and School Specific Dyes
West Virginia lawmakers voted in March to ban seven food dyes and two preservatives statewide, effective in January 2028. The seven dyes are Red Dye No. 3 and 40, Yellow Dye No. 5 and 6, Blue Dye No. 1 and 2, Green Dye No.3, all of which are currently banned for use in West Virginia schools. The preservatives subject to the ban are butylated hydroxyanisole (BHA) and Propylparaben. The Make Texas Healthy Again Act signed into law on ...June 25 mandates labeling for any food products containing 44 specific additives. The legislation went into effect in September. A proposed rule clarifying the requirements is open for public comment until October 27.
In September, new rules blocking certain dyes and additives went into effect for schools. The law requires that any food products sold in Texas with any of the 44 additives would carry a warning label reading, “This product contains an ingredient that is not recommended for human consumption by the appropriate authority in Australia, Canada, The European Union, or the United Kingdom.”
In Louisiana, a similar law will require QR codes be added to labels on food products containing the same 44 ingredients specified in the Texas law. This law passed a few days after the Texas measure but will not be mandatory until January 2028. In addition, certain food dyes, additives, and artificial sweeteners will be banned from public schools in 2028.
In California, a law passed in 2024 banning six artificial food dyes from public schools will go into effect in late 2027. In October 2023, California banned Red Dye No. 3 statewide along with brominated vegetable oil (BVO), potassium bromate, and propyl paraben.
Utah, Virginia and Arizona have also implemented school specific food dye bans. Utah’s measure begins in 2025 while Virginia's is 2027 and Arizona’s is effective for the 2026-2027 school year.
A New Palette Of Food Dyes
One month after the FDA announcement on food dyes, the administration made good on its promise to accelerate approval of natural food dyes. On May 9, the FDA announced approval for three new color additives. The newly approved colors are, Butterfly pea flower extract (bright blue, purple, and green), calcium phosphate (white), and Galdieria extract (blue).
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Editor: Maureen Donoghue
MDonoghue@plma.com