Wednesday, January 30, 2013

Supplemental register registration doesn’t have desired “Impact”


by J. Paul Williamson, Tara Vold and Tracy DeMarco


On December 18, 2012, the Trademark Trial and Appeal Board, in Otter Products LLC v BaseOneLabs LLC, 105 USPQ2d 1252, decided that a Supplemental Register registration for the mark IMPACT SERIES did not establish that the opposer owned a proprietary interest in this mark. See Dec. 18, 2012 Opinion.

The opposition was filed against an application for IMPACTBAND for cellular telephone and handheld computing device covers. Opposer asserted prior use of IMPACT SERIES and ownership of a Supplemental Register registration covering protective cases for interactive, handheld electronic devices, namely portable music players, portable video players, phones and computers. For its evidence, opposer relied solely on its Supplemental Register registration.

Applicant filed a motion for involuntary dismissal under Trademark Rule 2.132 claiming the Supplemental Register registration of opposer was “evidence of nothing” because Supplemental Register registrations are not entitled to any statutory presumptions.

While the Board found that a Supplemental Register registration was sufficient for establishing an opposer’s standing and priority in an opposition, such a registration did not establish a proprietary right in the covered mark – a required element of an opposer’s evidentiary burden.

The Board specifically distinguished the impact of a Supplemental Register registration in an inter partes case versus an ex parte case. In the ex parte context, the Patent and Trademark Office does not and cannot question the validity of a mark in a registration cited against another under Section 2(d). In an inter partes case, the asserter of a Supplemental Register registration must independently prove the ownership and validity of the mark, i.e. that the mark has acquired distinctiveness to the registrant.

Given this result, if the owner of a Supplemental Register registration has questions about its ability to prove acquired distinctiveness, and if it learns in a timely-enough fashion of a problematic application under Section 2(d), it may want to consider the “Letter of Protest” procedure (TMEP §1715; TBMP §215). Likelihood of confusion issue resolutions may typically not be favored in the Letter of Protest process, but this approach may offer more opportunity for success when proof of acquired distinctiveness in an opposition context is uncertain.

Source: Trademark Trial and Appeal Board

This article was prepared by J. Paul Williamson (pwilliamson@fulbright.com / 202 662 4545), Tara Vold (tvold@fulbright.com / 202 662 4657) and Tracy DeMarco (tdemarco@fulbright.com / 202 662 4653).

Friday, January 18, 2013

The FTC’s new COPPA requirements, advertising and strict liability


By Sue Ross


Does your company offer mobile apps with animated characters or with “kids” in the title or description? Does your website have a section aimed at students, explaining your goods or services in a fun and educational way? Does your company run a contest for students to submit artwork or essays on your social media site?

It doesn’t matter if your company is involved in healthcare or financial services or manufacturing, these offerings could bring your company within the scope of the Children’s Online Privacy Protection Act (COPPA) and the Federal Trade Commission’s new amended regulation, which goes into effect on July 1, 2013.

On September 27, 2011, the FTC proposed updates to its COPPA regulation, which initially went into effect in 2000. 76 Fed. Reg. 59804 (Sept. 27, 2011). The current regulation imposes restrictions on companies that operate websites or provide online services directed at children under the age of 13, and those that have actual knowledge that they are collecting personal information online from children under 13. Those site operators must obtain parental consent before obtaining and using a child’s “personal information.”

On December 19, 2012, the FTC announced the final version of its amendments to the COPPA rule. See FTC Announcement. The new amendments do not change many of COPPA’s guiding principles—so everyone who had been subject to COPPA will likely continue to be—but the new amendment does expand the scope and adds a strict liability standard for site operators with respect to certain third-party actions.

Among many other changes, the FTC’s new amendments added an exception to the parental notice and consent requirements that is probably very important to many companies: the parental notice and consent requirements do not apply for personal identifiers used “solely to support for internal operations” of the web site. This new “internal operations” exception contains a broad swath of services that many web sites currently provide for themselves:
  1. authentication of users, 
  2. contextual advertising, 
  3. frequency capping, 
  4. legal compliance, 
  5. maintaining or analyzing site functioning,
  6. network communications, 
  7. security and integrity, and
  8. site analysis. 
 The COPPA requirements of parental consent still apply, however, with respect to any uses or disclosures of information collected to contact a specific person, including through behavioral advertising, regardless of whether that information was collected to create a profile on that person or for any other purpose.

When the COPPA regulations were first promulgated, plug-ins and advertising networks were not commonly in use. The FTC wrestled with these topics in 2011, and had initially considered amending the COPPA rule to make the creator of the plug-in a “covered co-operator” of the child-directed site and thus subject to COPPA’s requirements.

In response to the comments received, however, the FTC has instead focused the regulatory obligations on the site operator, but has placed strict liability on that operator if the operator allows other online services—such as plug-ins or advertising networks—to collect personal information through the child-directed site. Note that the FTC stated that it will “deem a plug-in or other service to be a covered co-operator only where it has actual knowledge that it is collecting information through a child-directed site.” 78 Fed. Reg. at 3975.

Sources: 76 Fed. Reg. 59804 (Sept. 27, 2011); 78 Fed. Reg. at 3972 (Jan. 17, 2013); “FTC Strengthens Kids’ Privacy, Gives Parents Greater Control Over Their Information By Amending Children’s Online Privacy Protection Rule,” Dec. 19, 2012.

This article was prepared by Sue Ross (sross@fulbright.com / 212 318 3280) of Fulbright’s Privacy, Competition and Data Protection Practice.

Wednesday, January 16, 2013

The brilliance of a girl’s best friend is challenged


By Bob Rouder and Saul Perloff



On November 13, 2012, Sterling Jewelers filed a complaint charging its competitor, Zale Corporation, with false advertising under the Lanham Act and deceptive trade practices under Ohio law. Sterling operates 1,300 jewelry stores under the Kay Jewelers and Jared the Galleria of Jewelry brand names. Zale is a retailer operating 1,870 stores under the brand names Zales and Gordon’s Jewelers.

The Sterling Allegation


At issue are the Zales advertisements for its Celebration Fire™ diamond collection (“Celebration Fire”) which Zales promotes as “The Most Brilliant Diamond in the World.”


The Celebration Fire promotions appeared on the Zales’ website, in the social media, and on point-of-purchase displays. In addition, the Zales catalog asserts that the Celebration Fire diamond “shines with more brilliance than any other diamond in the world based on independent laboratory testing conducted in 2012 of round-cut diamonds from select leading national jewelry store chains.” See Sterling Complaint

In the suit, Sterling characterizes the catalog advertisement as an establishment claim. According to Sterling, not only is the Celebration Fire diamond not the most brilliant diamond in the world, but the representation that “independent laboratory testing” proves the claim, is also false.

The Puffing Issue


Advertising claims that are exaggerations unlikely to be believed by consumers or those that are laudatory and phrased in broad and vague terms are generally not actionable because they are considered to be acceptable “puffing.” Thus, an entertainment company’s advertisement opining that its property was the “happiest place on earth” or an insurance company’s claim that “you are in good hands” would likely be considered non-actionable puffing because “happy places” and being in “good hands” do not lend themselves to measurement where truth or falsity might be discerned.

Other claims represent closer calls and must be viewed in the context of the entire advertisement. For example, when Papa John’s Pizza advertised “Better Ingredients. Better Pizzas” the Fifth Circuit held that the slogan by itself was puffing because the phrase lacked an empirical means of being judged true or false. However, in the same ad Papa John’s asserted it used “fresh, vine-ripened tomatoes” and “clear filtered water” rather than “remanufactured tomato paste” and “tap” water.

When considering its context, especially the comparison of food ingredients, the Court held the slogan “Better Ingredients. Better Pizza” was actionable. Pizza Hut, Inc. v. Papa John’s Int’l Inc., 227 F.3d 489 (5th Cir. 2000).

In their respective pleadings, both parties appear to agree that “the brilliance of a diamond is a recognized property that is capable of being systematically, reliably and scientifically measured.” See Sterling ComplaintZale Answer.

Indeed, Zale refers to such tests in its advertising. In that context, the court may conclude Zale’s claim is less a laudatory opinion and more a statement of purported fact that can be shown by evidence to be false. However, there are experts in the industry who point out that while brilliance can be measured, there is no single, agreed-upon methodology to do so. At least one gemologist dismisses efforts to measure brilliance as “pseudoscience” and a mere marketing technique. In that light, the Sterling court might view the Zale advertisement as acceptable puffing.

The Establishment Claim


When testing or some other means of empirical analysis is asserted or implied to be the basis of an advertisement’s factual statement, the ad itself is said to contain an “establishment claim.” Establishment claims have inherent means to be shown as either true or not true: A study was or was not performed; it did or did not produce the reported result; the result can or cannot be reproduced in subsequent testing; the study protocol was or was not validated; and so forth.

In its suit, Sterling contends that by testing only round cut diamonds and by limiting the samples tested to those supplied by “select leading national jewelry store chains” the study is fatally flawed if used to establish a claim of comparative brilliance among all diamonds worldwide. There are at least nine other cuts of diamonds beside a round cut. And Sterling points out that the “select chain” limitation excludes regional chains; independent jewelers; national chains not judged to be “leading;” the internet; and any seller outside the U.S.

The Zale Answer


In its answer to the complaint, Zale denies Sterling’s allegations and also asserts several defenses including laches, estoppel, and “unclean hands.” See Zale Answer (Doc. 27). The doctrine of unclean hands holds that a plaintiff may not seek the aid of a court to remedy an act when the plaintiff itself has engaged in similarly improper conduct that harmed the defendant. Zale’s answer does not set forth the facts upon which it bases its unclean hands defense. It is possible the defense is related to Sterling’s own advertising. According to the Wall Street Journal, The Leo Diamond sold at Kay and Jared has been promoted as “the first diamond ever to be certified visibly brighter.”

The Preliminary Injunction


Sterling requested that the court halt the Zale advertisements and on December 17 & 18 a hearing was held on the matter. Sterling presented two experts, one to testify about the issue of brilliance and one who did a survey of consumers viewing the Celebration Fire ads. Zale presented two experts on the topic of brilliance and testing and was denied the ability to present a consumer survey expert because he was a last minute surprise. From the hearing, a glimpse of the themes that each side is pursuing come into focus.

In post-hearing briefing, Sterling argued that unlike cars or televisions which they characterize as “identical commodities,” diamonds are unique. In fact, says Sterling, Zale markets the Celebration Fire product as if “each diamond is the most brilliant available.” Therefore, despite the fact that there is no single accepted industry method of defining brilliance, in order to substantiate its claim, Zale would need to “test every individual Celebration Fire diamond against every competing diamond in the market.” See Sterling Post-Hearing Brief (Doc. 33) and Sterling Reply Brief (Doc. 37).

Zale counters that it used a reliable test for brilliance, that its claims are in general accord with the database maintained by Sterling’s expert, and that its results are not contraindicated by any reliable methodology. More importantly, Zale points out that in Sterling’s consumer survey, many customers perceived “the most brilliant diamond in the world” to carry different meanings. Some perceived it as puffing, others thought the ad referred to a single diamond; some thought it referred to a class of diamonds and yet others thought it referred to the average brilliance of the Celebration Fire line. As such, the ad was ambiguous and therefore cannot be literally false. See Zale Post-Hearing Brief (Doc. 35).

No decision has been issued yet relative to the preliminary injunction. The Brand Protection Blog will continue to monitor this case.

Sources: Sterling Jewelers Inc. v. Zale Corporation, Case No. 5:12-cv-02823 (N.D. Ohio); Pizza Hut, Inc. v. Papa John’s Int’l Inc., 227 F.3d 489 (5th Cir. 2000).


This article was prepared by Bob Rouder (rrouder@fulbright.com / 512 536 2491) and Saul Perloff (sperloff@fulbright.com / 210 270 7166) of Fulbright’s False Advertising Practice.

Wednesday, January 9, 2013

Hybrid fuel efficiency claims targeted in class action lawsuit


By Kathy Grant and Saul Perloff 


The owner of a new 2013 Ford C-Max Hybrid has filed a consumer fraud class-action lawsuit against the Ford Motor Company, alleging Ford has engaged in a “false and misleading marketing campaign” for its 2013 C-Max Hybrid and Fusion Hybrid vehicles.

The complaint alleges the cars “consistently achieve[] gas mileage far below the advertised mileage under normal real-world use.” The suit, filed in U.S. District Court in the Eastern District of California seeks a variety of damages, including reimbursement for the purchase price of Ford's new hybrid vehicles, disgorgement of profits and punitive damages. See Pitkin Complaint.

Richard Pitkin, the lead plaintiff in the lawsuit, asserts that Ford’s advertising claim that the C-Max achieves 47 miles per gallon (“mpg”) of gasoline was the primary reason he purchased his C-Max and that he reasonably believed the C-Max would actually achieve 47 mpg in real-world driving. However, according to the complaint, since purchasing the vehicle, Mr. Pitkin has averaged only 37 mpg. In seeking damages on behalf of himself and the putative class, he alleges that his experience was “not the exception, but rather the rule.”

C-Max Hybrid Fuel Efficiency Discrepancy


This lawsuit was filed one day after Consumer Reports reported that its tests show the fuel efficiency of Ford’s C-Max and Fusion Hybrids was significantly below the EPA fuel economy estimates reported on the autos’ window stickers.

According to Consumer Reports, the C-Max Hybrid’s fuel economy was found to be 37 mpg overall, with 35 mpg for city driving and 38 mpg on highways. The report posted similar numbers for the Fusion Hybrid: 39 mpg in testing overall, with 35 mpg during city driving and 41 mpg on the highway. See “Tests show Ford Fusion, C-Max hybrids don't live up to 47-mpg claims.

Since releasing its test results, Consumer Reports has posted a follow-up on its blog concerning the differences between its test procedures and test procedures the EPA employs. See “Why do Ford’s new hybrids ace the EPA fuel economy tests?

Consumer Reports suggests the discrepancy between the EPA estimates Ford reported and the results Consumer Reports found are linked to the way the Ford hybrids work.

As hybrid vehicles, both the C-Max and the Fusion can travel in electric-only mode, without any consumption of gasoline. However, unlike other hybrids (e.g., the Toyota Prius) which operate in electric-only mode at relatively slow speeds (e.g., under 25 mph), both Fords are capable of traveling at a top speed of 62 mph in electric-only mode. Only at higher speeds do the cars’ gasoline engines start and help to recharge the cars’ batteries.

EPA Fuel Economy Requirements


The U.S. Environmental Protection Agency (EPA) requires that vehicle manufacturers must provide consumers with city and highway mpg estimates to help consumers compare the fuel economy of different vehicles when shopping for new cars. The EPA has enacted regulations that prescribe how manufactures must test their vehicles, and measure, calculate and report fuel economy information in regulations at 40 CFR Part 600 -- Fuel Economy of Motor Vehicles.

Under these regulations, EPA fuel economy estimates must be derived from laboratory testing of a representative vehicle (typically a pre-production prototype) under controlled conditions, using a standardized test procedure specified by federal law.

Each new car and truck is tested on an indoor dynamometer, i.e., a set of rollers that turns the vehicle’s wheels while the car or truck sits in place. A test driver runs the vehicle through two standardized driving schedules, one each to simulate city and highway driving conditions.

  • The “city” cycle is designed to replicate an urban rush-hour driving experience in which the vehicle is started with the engine cold and is driven in stop-and-go traffic with frequent idling. The vehicle is driven for 11 miles and makes 23 stops over the course of 31 minutes, with an average speed of 20 mph and a top speed of 56 mph.
  • The “highway” cycle is designed to emulate rural and interstate freeway driving with a warm engine, making no stops. The vehicle is driven for 10 miles over a period of 12.5 minutes with an average speed of 48 mph and a top speed of 60 mph.

Both fuel economy tests are performed with the vehicle's air conditioning and other accessories turned off. Notably, under both sets of conditions, Ford’s hybrids can operate in full-electric mode, without any gasoline consumption.

In contrast, Consumer Reports investigators measured average fuel usage during actual highway driving at 65 mph. i.e., at a speed when the Ford’s hybrid gasoline engine is in operation.

The EPA has stated that while its fuel efficiency ratings are intended to help consumers compare the fuel efficiency of vehicles in the same class, consumers should not rely on these estimates to provide an accurate projection of the actual gas mileage they will get for a particular vehicle.

Nonetheless, a comparison of EPA estimates with other on-road fuel economy estimates often shows the measurements are closely correlated. Consequently, and as Consumer Reports has pointed out , the EPA may need to examine and make changes in its protocols “to address new challenges in predicting fuel-economy for emerging technologies.”

The discrepancy between EPA and “real-life” fuel efficiency estimates poses a quandary for car manufacturers seeking to highlight fuel efficiency-improving technologies in their marketing campaigns, at time when fuel efficiency is a critical consideration among many new-car buyers.

Notably, the lawsuit against Ford does not allege the company incorrectly performed the EPA tests or otherwise misrepresented the data, to derive the 47 mpg EPA fuel economy estimate. Instead, the complaint alleges Ford’s advertising scheme “misleadingly and unfairly uses the existing EPA mileage numbers to represent and imply that the miles-per-gallon EPA estimate reflects actual, expected mileage under normal real-world driving conditions.”

Preemption Argument


Because Ford has yet to file an answer to the lawsuit, it is not clear how the company will respond. The fact that federal law required Ford to post the EPA estimates might seem to provide a sympathetic preemption defense. However, other manufacturers who have asserted this defense have not succeeded.

For example, in, True v. Am. Honda Motor Co., Inc., 520 F. Supp. 2d 1175 (C.D. Cal. 2007), the court refused to dismiss the plaintiff’s California state law claims based on allegations that Honda had made false and deceptive advertisements regarding the fuel efficiency and cost savings of its Honda Civic Hybrid automobile.

Honda argued that the plaintiff’s state law claims were preempted by federal law, and specifically the EPA’s requirements that car manufacturers post the EPA-derived fuel economy estimates on the window stickers of its new cars.

The court rejected this argument, finding, “[i]t would be an unreasonable assumption, however, that Congress intended to preempt states from regulating false or misleading advertising of a vehicle's fuel efficiency and cost savings.” See 2007 Order Denying Defendant’s Motion to Dismiss.

Sources: Richard Pitkin vs. Ford Motor Co., Case No. 2:12-cv-02973-KJM-DAD (E.D. Cal.); U.S. Environmental Protection Agency website; John True vs. American Honda Motor Co., Inc., Case No. EDCV 07-287-VAP (OPx) (C.D. Cal.); Code of Federal Regulations, Title 40: Protection of Environment, Part 600 – Fuel Economy and Greenhouse Gas Exhaust Emissions of Motor Vehicles (Jan. 4, 2013); Consumer Reports on-line.

This article was prepared by Kathy Grant (kgrant@fulbright.com / 210 270 7182) and Saul Perloff (sperloff@fulbright.com / 210 270 7166) of Fulbright’s False Advertising Practice.

Friday, January 4, 2013

California court finds opening in 9th Circuit preemption ruling


By Brandon Crisp


A federal court in California ruled last month that certain mislabeling claims against the Hershey Co. were not preempted by federal law. Khasin v. Hershey Co., 2012 U.S. Dist. LEXIS 161300 (N.D. Cal. Nov. 9, 2012).

In Khasin, a putative class representative brought California state-law claims against Hershey for alleged misrepresentations on the label of some Hershey products.

The defendants moved to dismiss and argued that the state-law claims were preempted by the FDCA, largely relying on the Ninth Circuit's recent decision in Pom Wonderful LLC v. Coca-Cola Co. 679 F.3d 1170 (9th Cir. 2012). But U.S. District Judge Edward Davila of the Northern District denied Hershey's preemption bid and found that the plaintiff's state-law claims should not be dismissed.

A few months back, the Ninth Circuit's Pom Wonderful decision was seen as a major victory for the food and beverage industry. In Pom Wonderful, the plaintiff claimed that the defendant violated the Lanham Act because it misled consumers with the naming and labeling of its juice product. The Lanham Act "broadly prohibits false advertising," and authorizes a lawsuit by anyone who believes that she will be damaged by the false advertising.

The Ninth Circuit concluded, however, that there was a potential conflict between plaintiff's claims under the Lanham Act and the FDCA, because the FDCA comprehensively regulates food and beverage labeling.

Because of this conflict, the court held that the FDCA trumps the Lanham Act and therefore barred both the name and labeling aspects of plaintiff's Lanham Act claim. The court reasoned that private parties should not able to use a Lanham Act claim to undermine the FDA's judgment with regard to food labeling. The court did not decide, however, whether plaintiff's state-law claims were preempted and instead remand them to the district court for reconsideration of a standing issue.

That remand was the opening that the Khasin plaintiff tried to use to avoid preemption. In moving to dismiss, Hershey first argued that plaintiff's state law claims were preempted by federal law because the FDCA explicitly precludes private actors from enforcing this federal law and FDA regulations.

The defendant cited Pom Wonderful, but the court rejected this argument, noting that Pom Wonderful decision only recognized the FDCA's preemption of other federal claims and remanded the state-law claims for determination of a standing issue. Although the FDCA has a provision that explicitly leaves its enforcement to the United States, the Khasin court found the plaintiff's claims appropriate because they were seeking to enforce state, not federal statutes.

The court relied on the medical device parallel violation exception language from the Supreme Court's Riegel decision, which held that similar provisions of the FDCA "do [] not prevent a State from providing a damages remedy for claims premised on a violation of the FDA regulations; the state duties in such a case 'parallel,' rather than add to, federal requirements." Riegel v. Medtronic, Inc., 552 U.S. 312, 330 (2008).

Defendant's also argued that the express preemption language from the FDCA acts as a bar to Plaintiff's state-based claims. Id. at 16. The express preemption clause states:
. . . no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce—(1) any requirement for a food which is the subject of a standard of identity established under section 341 of this title that is not identical to such standard of identity or that is not identical to the requirement of section 343 (g) of this title . . .
21 U.S.C. §343-1(a)(1) (emphasis added). But the court held that plaintiff's claims sought to enforce state-law standards that were identical to the FDCA, and therefore the court found no preemption. Going forward, the Khasin strategy will certainly serve a blueprint for future food-labeling plaintiffs as they attempt to survive preemption arguments at the dismissal stage. But both plaintiffs and defendants should note that this does not guarantee all state-law claims will survive dismissal.

First, many courts have favored dismissal in similar cases (e.g., Lateef v. Pharmavite LLC, 2012 U.S. Dist. LEXIS 152528 (N.D. Ill. Oct. 24, 2012)) and Khasin's narrow reading of Pom Wonderful might not widely adopted by other courts.

Additionally, the Ninth Circuit could still get the chance to explain why the Khasin court misinterpreted their Pom Wonderful decision. What we do know is that reasoning in Khasin leaves future motions to dismiss up the air until higher courts address whether identical state-law claims are preempted.


This article was prepared by Brandon Crisp (bcrisp@fulbright.com / +1 512 536 2422) from Fulbright’s Litigation Practice.

Wednesday, January 2, 2013

Newman's Own voluntarily recalls dressing due to allergy issues in product labeling


By Megan Engel


On November 26, 2012, Newman's Own voluntarily recalled batches of its Lite Honey Mustard Dressing because the product label on the bottle did not mention the fact that the dressing contained milk, a major food allergen.

Individuals who are allergic to milk should not consume the Lite Honey Mustard Dressing because doing so could cause a serious or life threatening reaction.

Newman's Own initiated the recall after learning that the 16-fluid ounce bottles of its dressing were labeled with an incorrect back label failing to include milk as an ingredient of the product.

The recalled batches of products were sold in stores from the eastern to midwestern United States. See Newman's Own, Inc. Issues Voluntary Recall of Newman's Own Lite Honey Mustard Dressing Due to Undeclared Milk, FDA Press Release, November 23, 2012.

The Food Allergen Labeling and Consumer Protection Act of 2004 ("FALCPA") requires manufacturers to clearly label any food product containing a "major food allergen" on food labels. A "major food allergen" is defined by the law as an ingredient that is one of the following foods or has any ingredient containing protein from one of the following foods:
  1. milk
  2. eggs
  3. fish
  4. crustacean shellfish
  5. tree nuts
  6. peanuts
  7. wheat and
  8. soybeans
The FALCPA requires manufacturers to identify on product labels that the product contains one or more of these major food allergens. The law applies only to packaged foods, including products imported into the United States, but excludes from regulation poultry, meat, and egg products. The label must either:
  1. disclose the name of the food source of the major food allergen in parentheses after listing the ingredient's common name or
  2. next to or immediately after listing the ingredients, put the word "contains" and then the name of the major food allergen
If the food label does not adequately disclose the presence of the allergen, the food product may be recalled by the company or FDA. Other penalties for failing to comply with the FALCPA include civil sanctions, criminal penalties, and the seizure of food products. 

The Food Allergy & Anaphylaxis Network ("FAAN") estimates that as many as 15 million people in the United States have some type of food allergy. Approximately nine million, or four percent, of adults have food allergies, while approximately six million, or eight percent, of young children have food allergies.

The prevalence of food allergies has been on the rise; the Centers for Disease Control and Prevention noted in a 2008 study that an 18% increase in food allergies was seen between 1997 and 2007.

The eight foods regulated by the FALCPA—milk, eggs, peanuts, tree nuts, wheat, soy, fish, and shellfish—account for 90% of all food allergies. See Food Allergy Facts and Statistics for the U.S., The Food Allergy & Anaphylaxis Network.

Read more about the FALCPA.


This article was prepared by Megan Engel (mengel@fulbright.com / 512 536 2491) from Fulbright’s Health Care Practice.