Without admitting liability for alleged misleading advertising involving its probiotic yogurt products, The Dannon Co. has agreed to settle claims in seven putative class actions for $35 million. Gemelas v. The Dannon Co., Inc., No. 08-00236 (N.D. Ohio, stipulation of settlement filed September 18, 2009). If approved by the court, the settlement would also require the company to modify the advertising and labeling for its Activia® and DanActive® products to explain how they “regulate the digestive system” and to modify promotional statements about the products’ effects on the digestive tract’s immune system. Under the proposed settlement, class claimants can obtain $15 by submitting a claim form, $15-$30 by submitting a claim form signed under penalty of perjury, and $30-$100 by submitting a claim form signed under penalty of perjury and register receipts or other sufficient proofs of purchase. The amount ultimately paid to claimants will depend on the number of…
Posts By Shook, Hardy & Bacon L.L.P.
A federal court in California has determined that the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) erred when it deregulated a genetically engineered (GE) sugar beet without preparing an environmental impact statement. Ctr. for Food Safety v. Vilsack, No. 08-00484 (N.D. Cal., decided September 21, 2009). Thus, the court granted the motion for summary judgment filed by the Center for Food Safety and other environmental interest groups and scheduled a hearing for October 30, 2009, to decide what remedies will be appropriate. A court in the same federal district ruled in 2007 that APHIS erred in deregulating GE alfalfa, and this court based its ruling on that decision, which resulted in an effective halt to the use of GE alfalfa. According to the court, which discussed at length how sugar beets are grown and how cross-pollination can occur with non-GE sugar beets and related Swiss chard and…
The New York City Planning Commission has reportedly approved a proposal that would offer zoning and tax incentives “to encourage the development of full-service grocery stores that devote a certain amount of space to fresh produce, meats, dairy and other perishables,” according to a September 24, 2009, article in The New York Times. The plan would apparently relax zoning restrictions in some areas to permit supermarket construction and would include tax abatements and exemptions for approved stores in parts of northern Manhattan, central Brooklyn, the South Bronx, and downtown Jamaica in Queens. In addition, the regulations would require new store owners to display entrance signs stating that their establishments sell fresh food. Based on a similar Pennsylvania program, the proposal has purportedly garnered support from food policy experts, supermarket executives and City Council members, who must also vote on the plan. “This is about being able to walk to get your…
The Federal Trade Commission (FTC) plans to conduct a study of food marketing to children and adolescents for a follow-up report to its 2008 study titled “Marketing Food to Children and Adolescents: A Review of Industry Expenditures, Activities, and Self-Regulation.” FTC seeks public comments by November 23, 2009, on proposed information requests to approximately 45 major food and beverage companies and quick-service restaurants about their marketing activities, expenditures and nutritional information concerning food and beverage products marketed to children and adolescents. FTC plans to evaluate possible changes in the nutritional content and variety of youth-marketed foods, and “proposes to seek scientific and market research exploring psychological and other factors that may contribute to food advertising appeal among youth.” See Federal Register, September 21, 2009.
The Food and Drug Administration (FDA) has announced a public hearing for November 12-13, 2009, to discuss issues related to ways the internet and social media tools are used to promote FDA-regulated medical products, including prescription drugs for humans and animals. Comments from “consumers, patients, caregivers, health care professionals, patient groups, internet vendors, advertising agencies, and the regulated industry” are requested by October 9, 2009. FDA is “particularly interested in hearing views from the public as to how expanding Web 2.0 technologies may be used to promote medical products to both health care professionals and consumers in a truthful, non-misleading, and balanced manner.” Emerging internet technologies such as blogs, microblogs, podcasts, social networks and online communities, video sharing, widgets, and wikis have prompted questions from regulated companies and other interested parties regarding advertising and labeling provisions, regulations and promotion policies. See Federal Register, September 21, 2009.
U.S. Representative Louise Slaughter (D-New York) has asked the Government Accountability Office (GAO) to review federal efforts to collect data on antibiotic use in animals. In a letter to Acting Comptroller General Gene Dodaro, Slaughter asked for the study because a 2005 GAO report found that the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC) and the U.S. Department of Agriculture (USDA) were not collecting data “on the types and amounts of antibiotics used in different species of food animals or whether the antibiotics were used to promote growth, prevent disease, or treat disease.” Slaughter, who chairs the House Committee on Rules, also introduced a bill earlier this year to restrict the non-therapeutic use of antibiotics in animals raised for meat, citing claims that animal antibiotic use has made some antibiotics less effective in treating human health problems. Her letter requests that GAO find out…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has issued an advanced notice of proposed rulemaking (ANPR) to solicit public feedback on the conditions under which the agency should permit “natural” labeling claims for meat and poultry. The current FSIS standard states that minimally processed meat and poultry products can use the “natural” label if the product “does not contain any artificial flavor or flavoring, coloring ingredients, chemical preservative, or any other artificial or synthetic ingredient.” The agency is now considering whether to define the term “natural” or continue evaluating the claim on a case-by-case basis. It specifically seeks comments on “how best to coordinate FSIS’ regulation of ‘natural’ claims with the Agricultural Marketing Service’s (AMS) voluntary ‘naturally raised’ marketing claim standard.” FSIS will accept comments until November 13, 2009. See FSIS Press Release, September 11, 2009; Federal Register, September 14, 2009.
This article examines a new food-labeling campaign called the Smart Choices Program™, which uses the government dietary guidelines to identify “smarter food and beverage choices” for consumers. According to reporter William Neuman, the industry-backed system has apparently provoked the ire of some nutritionists who question the use of the green checkmark on “sugar-laden cereals like Cocoa Krispies and Froot Loops.” The Food and Drug Administration and U.S. Department of Agriculture have also warned the program’s managers that the agencies will be monitoring the results to see whether the labels “had the effect of encouraging consumers to choose highly processed food and refined grains instead of fruits, vegetables and whole grains.” “What we don’t want to do is have front-of-package information that in any way is based on cherry-picking the good and not disclosing the components of a product that may be less good,” one senior FDA advisor was quoted as…
“The American way of eating has become the elephant in the room in the debate over health care,” states Times writer Michael Pollan in this op-ed piece asserting that “our success in bringing health care costs under control ultimately depends on whether Washington can summon the political will to take and reform a second, even more powerful industry: the food industry.” Pollan predicts that requiring health insurers to “take everyone at the same rates, provide a standard level of coverage and keep people on their rolls regardless of their health” would signify a sea change in the relationship between insurance providers and the food industry. “When health insurers can no longer evade much of the cost of treating the collateral damage of the American diet, the movement to reform the food system – everything from farm policy to food marketing and school lunches – will acquire a powerful and wealthy…
The representatives of a man who died of botulism have filed a lawsuit in federal court against Malo, Inc. and Massmann Enterprises, Inc., claiming that the companies responsible for maintaining food canning equipment at a Atlanta, Georgia, facility failed to warn owner Bumble Bee Foods, LLC about a leaky water valve . Caffrey et al. v. Malo, Inc. and Massmann Enterprises, Inc., No. 09-104 (S.D. Ga., September 2, 2009). The complaint alleges that the defendants should have known that the defective equipment would prevent the canning process from achieving the high temperatures and pressures necessary for sterilization. The malfunction purportedly resulted in the distribution of botulism-tainted chili, beef stew and hot dog chili sauce that led to the death of Jeffrey Caffrey in September 2007. The sister and mother of the deceased are reportedly seeking $13.5 million for negligence, wrongful death, product liability, pain and suffering, and loss of consortium. See…
