A federal court in Arkansas has determined that Liberty Mutual Insurance Co. has a duty to defend an agricultural cooperative in more than 170 civil lawsuits filed by rice farmers over the contamination of their conventional crops with a genetically engineered (GE) variety. Riceland Foods, Inc. v. Liberty Mut. Ins. Co., No. 10-00091 (E.D. Ark., decided June 8, 2011). The court found that while the relevant commercial general liability policies precluded coverage for cross-pollination, they were silent as to liability for the physical mixing of a contaminating crop “with conventional rice during harvest, processing, transportation, or storage,” which the plaintiffs alleged in addition to cross-pollination as an independent cause of their injury. The court held that “the duty to defend remains when cross-pollination is presented as one of several potentially independent causes of the damage.” The court also determined Liberty had no obligation to defend a European rice distributor that was sued in…
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A federal court in California has denied Safeway, Inc.’s motion to dismiss or stay proceedings alleging that it has an obligation to use information in its loyalty card customer database to provide email notice about produce recalls ordered by the Food and Drug Administration (FDA) or U.S. Department of Agriculture. Hensley-Maclean v. Safeway, Inc., No. 11-1230 (N.D. Cal., order entered June 13, 2011). Additional details about the case, which was first filed in state court, appear in Issue 380 of this Update. The grocery company argued that the “primary jurisdiction doctrine” or “equitable abstention” required the court to dismiss or stay the litigation “until and unless regulatory agencies have had the opportunity to consider and adopt appropriate rules governing the obligations a grocery store has with respect to providing its customers notice of such recalls.” According to Safeway, the Food Safety Modernization Act requires FDA to develop notice guidelines by…
The Fourth Circuit Court of Appeals has determined that the time poultry workers spend donning and doffing protective gear at the beginning and end of their shifts must be compensated as an “integral and indispensable” part of the principal activity of employment. Perez v. Mountaire Farms, Inc., No. 09-1917 (4th Cir., decided June 7, 2011). Because the time the employees spent doffing and donning some of their gear during an uncompensated meal break was related to their meal break and took a minimal amount of time, the court ruled that time noncompensable. The court found that the employer did not willfully violate the law, thus a two-year statute of limitations was applied to the litigation. And the lack of willfulness was found to be evidence of its good faith, so the court denied the employees’ request for liquidated damages under the Fair Labor Standards Act.
The Los Angeles Unified School District has reportedly removed flavored milk from school menus in an effort to combat rising rates of childhood obesity. The school board approved a five-year, $100 million dairy contract excluding chocolate and strawberry milk in favor of low-fat and nonfat plain milk, and soy and Lactaid products. Beginning in the 2011-12 school year, the menu overhaul will also include more vegetarian and ethnic fare and eliminate corn dogs, chicken nuggets and other breaded items. See Los Angeles Times, June 15, 2011.
The European Food Safety Authority (EFSA) has issued a public call for data “on the artificial sweetener aspartame (E 951) for consideration in a full re-evaluation to be completed in 2012 as requested by the European Commission [EC].” EFSA has asked interested parties and stakeholders to submit “scientific or technical data—published, unpublished and newly generated—related to the use of aspartame in food and drinks and as a tabletop sweetener.” Originally scheduled for 2020, the aspartame review is “part of the systematic re-evaluation of all authorized food additives in the European Union.” EFSA apparently agreed to move up the proceedings after European Parliament members voiced concerns about the sweetener. “Due to EFSA’s scientific cooperation efforts, particularly with its partners in EU Member States, ongoing liaison with international partners and its stakeholder dialogue, EFSA can draw on a well-established network to ensure that all the relevant data are considered,” stated the agency, which…
The U.S. Department of Agriculture’s (USDA’s) Office of Inspector General (IG) has issued an audit report criticizing USDA agencies for lacking coordinated oversight of regulations behind research and development of genetically engineered (GE) animals and insects. The agencies conduct and fund research into how GE animals can enhance the productivity of food animals and how GE insects can reduce problems posed by agricultural pests, according to the report. Among its criticisms, the report faults the Animal and Plant Health Inspection Service (APHIS) for not developing regulations for GE animals and insects that pertain specifically to their introduction for “import, interstate movement, or field release.” Noting that “APHIS program units focusing on biotechnology and animal health, respectively, had not coordinated with one another to prioritize the development of a regulatory framework for GE animals and insects,” the report states that consequently “the requirements that apply to these organisms were not clear…
The World Trade Organization (WTO) has reportedly issued a preliminary ruling that U.S. country-of-origin labeling (COOL) laws violate the organization’s Agreement on Technical Barriers to Trade. According to Feedstuffs, a WTO panel found that COOL “constitutes an illegal, non-tariff trade barrier that treats U.S. livestock and perishable commodities more favorably than livestock, fruits and vegetables and other covered commodities from Canada and Mexico.” The preliminary ruling will remain confidential for 30 days with a final version slated for release in September 2011, when the United States will have two months to appeal. See Feedstuffs, May 25, 2011. News of the preliminary ruling has since elicited a favorable reaction from the National Cattlemen’s Beef Association (NCBA), which described the decision as “unfortunate for the U.S. government” but a positive development for industry. As NCBA President Bill Donald explained, “Proponents of COOL have always believed that restricting imports of Mexican and/or Canadian…
A California court of appeal has ruled valid the methods by which the state updates the list of chemicals known to cause cancer or reproductive toxicity under the Safe Drinking Water and Toxic Enforcement Act (Prop. 65). Cal. Chamber of Commerce v. Brown, No. A125493 (Cal. Ct. App., decided June 6, 2011). Products containing these chemicals must be labeled with warnings to consumers. The law requires the state to update the Prop. 65 list annually and authorizes Cal/EPA’s Office of Environmental Health Hazard Assessment (OEHHA) to add chemicals by one of three methods, including one specifically targeted in the lawsuit. The Chamber of Commerce challenged the method that requires adding to the list those chemicals identified under the Labor Code as causing cancer or reproductive toxicity. According to the Chamber, this method could be used to place chemicals on the initial list only. It sought a declaration to this effect…
Another tomato grower has filed a claim for damages against the Food and Drug Administration (FDA), alleging that the agency announced a nationwide recall of all tomatoes in the United States in 2008 without having identified tomatoes as the source of a Salmonella outbreak. Williams Farms Produce Sales, Inc. v. United States, No. 11-01399 (D.S.C., filed June 8, 2011). Details about similar claims also filed in a South Carolina federal court appear in Issue 395 of this Update. According to the complaint, FDA ultimately conceded that tomatoes were not the source of the Salmonella contamination, but not before the price for tomatoes plunged. Alleging negligence, defamation, slander of title, product/ commercial disparagement, unconstitutional taking, and violation of unfair trade practices law, the plaintiff seeks actual damages in excess of $11 million, special damages, compensatory damages, treble damages, attorney’s fees, and costs.
Alabama and Indiana residents have filed a putative class action alleging violation of state consumer protection laws by a company that promotes its orange juice as “not from concentrate juice” and “100% pure Florida squeezed,” when it allegedly “contains orange juice concentrate and water.” Leftwich v. TWS Mktg. Group, Inc., No. 11-01879 (D. Ala., filed June 2, 2011). Seeking to certify a nationwide class of consumers, the plaintiffs refer to a Food and Drug Administration letter warning the defendant that its labeling violated the Federal Food, Drug, and Cosmetic Act. The plaintiffs contend that they were misled by the product labeling and that the alleged misrepresentations were a substantial factor in influencing their decisions to purchase the products. They allege a loss of money, because they were “deprived of the benefit of their bargain.” The plaintiffs allege violations of consumer protection laws, breach of express warranty and unjust enrichment. Claiming…
