A federal court in California has denied without prejudice the motion of Ferrero U.S.A., Inc. to transfer a consolidated consumer-fraud class action involving its Nutella® spread to a New Jersey district court. In re: Ferrero Litig., No. 11-205 (S.D. Cal., decided May 11, 2011). According to the court, the convenience of the parties and witnesses and the interests of justice would best be served by allowing the plaintiffs to remain in their chosen jurisdiction. The court noted that similar litigation is pending in New Jersey, but that case was filed after the California lawsuits, “likely giv[ing] the cases in this district priority.” Additional details about the case can be found in Issue 380 of this Update.

A federal court in Vermont has certified a class of 9,000 to 10,000 dairy farmers who allege that Dean Foods Co. and others engaged in anticompetitive conduct and given preliminary approval to a settlement reached in December 2010. Allen v. Dairy Farmers of Am., Inc., No. 09-00230 (D. Vt., order entered May 4, 2011). Under the settlement, Dean Foods does not admit any wrongdoing, but will create a $30 million settlement fund. Its co-defendants have objected to the settlement, but the court determined that they lack standing to oppose preliminary approval of the Dean settlement. The court also noted that they opposed a settlement provision that has been removed. The court denied several motions to intervene and scheduled a final hearing date for July 18, 2011. The plaintiffs alleged conspiracies to monopolize, fix prices and restrain trade. Common questions of law and fact included whether the defendants “conspired to fix,…

A federal jury agreed with POM Wonderful LLC that Welch Foods, Inc. developed intentionally confusing and misleading marketing and labeling for its White Grape Pomegranate juice product to take advantage of the market POM created for pomegranate juice, but determined that POM did not lose sales because of Welch’s conduct. POM Wonderful LLC v. Welch Foods Inc., No. 09-00567 (C.D. Cal., verdict reached September 13, 2010). More details about the case appear in Issue 290 of this Update. POM has reportedly asked the Ninth Circuit Court of Appeals to review the verdict, claiming that the lower court’s decision to try the case in two phases led the company to refrain from introducing evidence about lost sales during the first phase, which focused on liability. According to a news source, the company requested before the verdict that the court not instruct the jury to decide whether POM had lost sales, but…

Taco Bell has requested that the Ninth Circuit Court of Appeals review a district court determination that three insurance companies are not required to provide coverage under commercial liability policies for economic loss allegedly arising from decreased patronage in the wake of a 2006 E. coli outbreak. Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Ready Pac Foods, Inc., No. 09-3220 (C.D. Cal., appeal filed May 11, 2011). The district court reportedly issued an order granting a request for certification of the economic loss claim and stayed its adjudication of other unresolved matters to allow Taco Bell to take an interlocutory appeal to the Ninth Circuit. According to the lower court, “The lost patronage claim presents a legal issue that is unique and distinct from the other types of loss for which Taco Bell seeks a declaration of coverage . . . such as claims for bodily injury, claims for…

Maryland Governor Martin O’Malley (D) has signed a bill (H.B. 4/S.B. 151) prohibiting the manufacture, sale or distribution of infant formula containers with a “certain amount” of bisphenol A (BPA). Effective July 1, 2014, the legislation restricts BPA levels in the containers to not more than 0.5 parts per billion and prohibits the state from purchasing containers with BPA levels exceeding that amount. Offenders of the law would be guilty of a misdemeanor and subject to fines as high as $10,000 for each violation. The law also calls for the Maryland Department of Health and Mental Hygiene to report to lawmakers by September 1, 2012, on BPA federal research findings and regulatory activities and to address the availability and safety of BPA substitutes for infant formula containers. It authorizes the state health secretary to suspend implementation of the BPA restriction on infant formula containers if “the secretary certifies that the…

California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) recently finalized its decision to add ethanol in alcoholic beverages and Chinese-style salted fish to the state’s list of carcinogenic chemicals. The listing was effective April 29, 2011. Companies that sell products containing listed chemicals in California are required to notify consumers that their products contain a chemical known to the state to cause cancer under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). More information about OEHHA’s decision appears in Issue 385 of this Update.

The U.K. Information Commissioner’s Office (ICO) has issued advice for businesses and organizations to ensure compliance with a new EU privacy directive governing the collection of online user data via “cookies” or other technologies that store visitor information on a user’s computer or mobile device. ICO has billed the guidance document as a “starting point for getting compliant rather than a definitive guide,” and has announced its intention to publish separate guidance on enforcement as the regulations are implemented. Effective May 26, 2011, the new rules revise the U.K. Privacy and Electronic Communications Regulations 2003 (PECR) in accordance with changes made to the EU Privacy and Electronic Communications Directive. Applicable to cookies, flash cookies and all other technologies designed to store or gain access to information stored “in the device of a subscriber or user,” the amended EU directive requires websites to obtain explicit user consent to store a cookie…

The European Food Safety Authority (EFSA) has published its first guidance document assessing the risk of engineered nanomaterial (ENM) applications in food and feed. Prepared in response to a European Commission request, the May 10, 2011, guidance comes after a six-week public consultation period during which EFSA received 256 comments from 36 organizations, including academia, industry, Member States, international authorities, and non-governmental groups. The guidance covers potential risks from applications of nanoscience and nanotechnologies across the food supply chain, including food additives, enzymes, flavorings, food contact materials, novel foods, feed additives, and pesticides. Outlining six toxicity testing methods, the guidance stresses the need for ongoing risk assessments in the burgeoning field of engineered nanomaterials and additional data on physical and chemical ENM characteristics in comparison with conventional applications. “A thorough characterization of the engineered nanomaterials followed by adequate toxicity testing is essential for the risk assessment of these applications,” EFSA…

The Environmental Protection Agency (EPA) has issued a significant new use rule (SNUR) for a multi-walled carbon nanotube under section 5 of the Toxic Substances Control Act (TSCA); it would require manufacturers, importers or processors of the chemical to follow manufacturing and use conditions already reviewed by EPA. The SNUR would require that any chemical manufacturer, importer or processor of the substance identified generically (due to confidentiality claims) as multi-walled carbon nanotubes notify the agency 90 days before seeking to make or use the chemical in a way that differs from those EPA has already reviewed. Section 5 of TSCA gives EPA the authority to review new chemicals before they can be manufactured or imported into the United States. The SNUR exempts from the requirements certain uses of carbon nanotubes, such as when they have been fixed onto a surface or encapsulated in plastic. See Federal Register, May 6, 2011.

The Institute of Medicine (IOM) has announced a May 19, 2011, public session of its Committee on Accelerating Progress in Obesity Prevention. Titled “Farm and Food Policy: The Relationship to Obesity Prevention,” the public session is a one-hour information-gathering forum where committee members will hear about “the determinants of food producer, manufacturer, and retailer decision making in the context of obesity prevention,” as well as “the current policy and political context in which farm and food policy decisions are made.” According to IOM, “the committee’s charge includes: considering relevant information about progress in the implementation of existing recommendations; developing guiding principles for choosing a set of recommendations; identifying a set of recommendations that is fundamental for substantial progress in obesity prevention in the next decade; and recommending potential indicators that can act as markers of progress.” IOM has solicited written comments on these topics and invited interested stakeholders to give…

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