November 28, 2021

Volume XI, Number 332

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Sargento Foods Faces Two Labeling Suits Regarding “No Antibiotics” Claims on Cheeses

Two lawsuits filed against Sargento Foods in December 2020 (Phan v. Sargento Foods Inc., No. 5:20-cv-09251 (N.D. Ca.)) and January 2021 (Beyond Pesticides v. Sargento Foods, No. 2021-CA-000178 B (Sup. Ct. D.C.)) assert that “no antibiotics” claims on Sargento’s cheese products mislead consumers into thinking that the cows that produced the milk used in the cheeses are never treated with antibiotics.  Sargento’s labels include a disclaimer that “no antibiotics” means that “our cheese is made from milk that does not contain antibiotics.”

The claims in the litigation alleging false advertising rely on a 2018 publication from Consumer Reports that says a majority of consumers believe a “no antibiotics” statement on a food label means that animals producing the food never received antibiotics, and as such, a reasonable consumer would be misled by Sargento’s “no antibiotics” claim, despite the disclaimer. The suits also allege that one Sargento cheese product did present detectable levels of sulfamethazine, an antibiotic that is prohibited from use in lactating dairy cattle. Sargento has not yet responded to either lawsuit.

Both FDA and USDA are working to address consumer concerns about antibiotic stewardship in food animal production. While antibiotics are sometimes used to treat bacterial infections in dairy cows, the Pasteurized Milk Ordinance developed by the FDA and adopted by most states require dairy farms to discard milk from cows treated with antibiotics for a specified withdrawal period and milk processers to test all milk, including organic milk, for the presence of beta-lactam antibiotics (such as penicillin and amoxicillin, among others) upon arrival at the milk processing facility before being added to a bulk supply. A fact sheet from the National Milk Producers Federation provides more details on antibiotic testing and this page from FDA provide more details on antibiotic testing. The USDA Food Safety and Inspection Service has also provided guidance for food labels that make animal raising claims, including claims about antibiotics.

© 2021 Keller and Heckman LLPNational Law Review, Volume XI, Number 36
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About this Author

Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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