A recent study attempting “to isolate the causal effect of junk food availability on children’s food consumption and body mass index (BMI)” has concluded that access to competitive foods in schools “does not significantly increase BMI or obesity among this fifth-grade cohort despite the increased likelihood of in-school junk food purchases.” Ashlesha Datar and Nancy Nicosia, “Junk Food in Schools and Childhood Obesity,” Journal of Policy Analysis and Management, Spring 2012. According to the researchers, who used data from the Early Childhood Longitudinal Study—Kindergarten Class as well as an instrumental variables (IV) approach leveraging “the well-documented fact that junk foods are significantly more prevalent in middle and high schools relative to elementary schools,” the results evidently revealed that where previous models had identified “any small positive associations” between junk food availability and obesity, those associations became insignificant “when controls for BMI at school entry and fixed state effects are added.”…
Category Archives Issue 436
An April 17, 2012, New York Times article has drawn attention to two recent studies questioning the perception that poor urban neighborhoods are “food deserts” with little access to fresh produce, vegetables and other healthy options. According to Times science correspondent Gina Kolata, reports published in The American Journal of Preventive Medicine (February 2012) and Social Science and Medicine (March 2012) have concluded that such neighborhoods “not only have more fast food restaurants and convenience stores than more affluent ones, but more grocery stores, supermarkets and full-service restaurants, too.” “Maybe we should call it a food swamp rather than a desert,” said RAND Corporation Senior Economist Roland Strum, whose study matched height, weight, diet, and residential data from participants in the California Health Interview Survey with information about nearby food outlets. Meanwhile, the second report funded by the Public Policy Institute of California (PPIC) relied on a federal study of 8,000 children…
A New Mexico rancher has reportedly petitioned the U.S. Department of Agriculture (USDA) to operate the first horse slaughterhouse since the ban for such operations was lifted in November 2011. Since 2006, the federal government has essentially blocked horse slaughterhouses because Congress did not fund their legally required USDA inspections. Those inspections, however, were approved by lawmakers in last year’s agricultural spending bill. According to a news source, Rick De Los Santos, part-owner of Valley Meat Co. in Roswell, plans to slaughter 20 to 25 horses a day and export the meat to Mexico for human consumption. He asserts that more than 100,000 American horses are shipped to slaughterhouses in Mexico and Canada, with some of the meat exported to Europe and Asia. “Everyone who’s ever eaten tacos in Mexico, I guarantee you they’ve eaten horse meat down there,” De Los Santos said. “It would never be my intention to…
A California egg farmer has filed a lawsuit challenging the constitutionality of Proposition 2 (Prop. 2), a voter-approved ballot initiative that, beginning January 1, 2015, will subject egg producers to criminal sanctions for confining egg-laying hens to cages preventing them from “lying down, standing up, and fully extending . . . [their] limbs” and “turning around freely.” Cramer v. Brown, No. 12-03130 (C.D. Cal., filed April 10, 2012). Contending that Prop. 2 violates his due process rights because it is vague and will result in arbitrary enforcement, the plaintiff claims that he and others will likely shut down their farms before the effective date and that the price of eggs will skyrocket for state consumers and supply shortages will occur if it goes into effect. The plaintiff also alleges that Prop. 2 violates the Commerce Clause by failing to provide local benefits and greatly burdening interstate commerce. According to the…
California resident Tricia Ogden has filed a putative class action in federal court against Bumble Bee Foods, LLC, alleging that it misbrands its seafood products by claiming they “are an excellent and affordable source of protein, nutrients and Omega 3 fatty acids” and “Rich in Natural Omega-3.” Ogden v. Bumble Bee Foods, LLC, No. 12-01828 (N.D. Cal., filed April 12, 2012). The only injury apparently alleged is economic, i.e., “Plaintiff would have foregone purchasing Defendant’s products and bought other products readily available at a lower price,” and “Plaintiff would not have purchased Defendant’s Misbranded Food Products had he [sic] known they were not capable of being legally held or sold.” According to the complaint, such representations and labeling establish that the company’s products are drugs under federal law “because they are intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease” and are sold without prior Food and…
According to the U.S. Equal Employment Opportunity Commission (EEOC), the owner and operator of a long-term residential treatment facility for chemically dependent women and their children has agreed to pay $125,000 to the estate of an employee allegedly terminated from her position because she was severely obese. EEOC v. Res. for Human Dev., Inc., No. 10-03322 (E.D. La., consent decree entered April 10, 2012). Additional information about the court decision denying the employer’s motions for summary judgment and recognizing obesity as a disability under the Americans with Disabilities Act (ADA) appears in Issue 421 of this Update. EEOC also indicated that under the consent decree, the employer will “provide annual training on federal disability law to all human resources personnel and corporate directors of RHD [Resources for Human Development] nationwide.” The agreement further requires the company to report to EEOC “for three years on all complaints of disability discrimination and…
A federal court in California has granted in part and denied in part the defendant’s motion to dismiss claims that its product labels, ads and Website representations for Muscle Milk® ready-to-drink beverages and snack bars violate state unfair competition and false advertising laws and the California Consumers Legal Remedies Act, and constitute fraud, negligent misrepresentation and unjust enrichment. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., decided April 11, 2012). While the court determined that the plaintiff has standing to pursue the putative class claims and that the claims are not preempted by federal law nor should be stayed under the primary jurisdiction doctrine, it found many of her claims insufficiently pleaded. According to the court, the only claim that survives the motion to dismiss alleges that the term “healthy fats” on the 14-ounce Muscle Milk® ready-to-drink label could constitute deceptive product labeling, because “[a] reasonable consumer would be likely…
Under a court order preliminarily approving a settlement of consumer fraud claims involving purported health benefit labeling used to sell Diamond Foods walnuts, the class notification program has apparently begun. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., preliminary approval order entered January 30, 2012). The court previously certified a nationwide class of consumers who have until July 30, 2012, to opt out of or object to the settlement. Additional details about the certification ruling appear in Issue 397 of this Update. The deadline for filing a claim is September 7. While the company admits no wrongdoing, it has ceased using the disputed product labels and has removed a “Live Well” section from its website. It also agreed to cease using unqualified health claims, but reserves “the right to use the FDA-approved qualified health claim for walnuts, any language or symbols developed by or in conjunction with the American…
The insurance carriers for Rubio’s Restaurant have filed a motion for summary judgment in a dispute with the company that insured the restaurant’s fish supplier, following the settlement of claims pursued by a restaurant patron who alleged that he has permanent and severe neurological injuries from exposure to a toxin from the mahi mahi in a Rubio’s fish burrito. Fireman’s Fund Ins. Co. v. Nationwide Mut. Fire Ins. Co., No. 11-0114 (S.D. Cal., motion filed April 9, 2012). While the patron and his wife reportedly sought $7 million in damages, the settlement amount remains undisclosed. According to the plaintiffs, the defendant must reimburse them for the costs of defending the restaurant and the amounts they contributed to the settlement on the restaurant’s behalf. The restaurant was evidently an additional insured under the defendant’s policy with the fish supplier, and the plaintiffs argue that a duty to defend exists when there…
The Judicial Panel on Multidistrict Litigation (JPML) has denied a motion seeking to consolidate and transfer to a multidistrict litigation court three cases filed in federal courts against companies allegedly responsible for a 2009 E. coli outbreak involving contaminated ground beef. In re: Ne. Contaminated Beef Prods. Liab. Litig., MDL No. 2346 (J.P.M.L., D. Conn., decided April 17, 2012). According to the court, the cases do not “contain significant overlapping questions of fact sufficient to warrant centralization of the few involved actions,” and “the likelihood that additional actions will be filed concerning this E. coli outbreak—which occurred nearly two and a half years ago and affected under 30 individuals—seems low. With only three actions pending in two adjacent districts involved in this litigation, movant has failed to convince us that centralization is needed.” The court indicated that it would be “practicable and preferable” for the parties, courts and counsel to informally…
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