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A California federal court has granted in part and denied in part a motion to dismiss a lawsuit alleging Chipotle Mexican Grill Inc. misleadingly advertises its food as free of genetically modified organisms (GMOs) despite allegedly selling flour and corn tortillas with GMOs, using GMO soy in its cooking oils and serving meat and dairy products derived from animals fed GMO feed. Pappas v. Chipotle Mexican Grill Inc., No. 16-0612 (S.D. Cal., order entered August 31, 2016). Chipotle argued that reasonable consumers would not “equate ‘nonGMO ingredients’ with ingredients not derived from animals that have eaten genetically modified feed.” The plaintiff argued that the reasonable consumer standard was not applicable at the motion-to-dismiss stage in a fraud or deception case, but the court found that the standard could be used to hold the plaintiff’s allegations to be implausible. The court compared the plaintiff’s meat and dairy allegations to a case…

A meta-analysis examining the effect of dairy fats on health has identified “a small positive association between butter consumption and all-cause mortality, no significant association with incident CVD [cardiovascular disease] or CVD subtypes, and a modest inverse association with type 2 diabetes.” Laura Pimpin, et al., “Is Butter Back? A Systematic Review and Meta-Analysis of Butter Consumption and Risk of Cardiovascular Disease, Diabetes, and Total Mortality,” PLoS One, June 2016. Relying on data from nine studies that included 636,151 unique participants with 6.5 million person-years of follow-up, researchers reported that “each daily serving of butter (14g/d) was associated with a 1% higher risk of death” from all causes. The pooled data, however, also showed that each 14-gram serving of butter per day was associated with a 4-percent lower incidence of type 2 diabetes, while the studies found no association between butter consumption and stroke, coronary heart disease or total CVD.…

The National Milk Producers Federation, International Dairy Foods Association and U.S. Dairy Export Council have authored a May 9, 2016, letter to President Barack Obama (D), asking the White House to reject proposed World Health Organization (WHO) guidance that “would discourage consumption of nutritious dairy products by young children.” Slated for presentation at the 69th World Health Assembly on May 23-28, 2016, the draft guidelines seek to end the promotion of breast-milk substitutes, including all milk and fortified soy milk, intended for consumption by children younger than age 3. Among other things, the proposal not only places restrictions on the marketing of foods for infants and young children, but also stipulates that “the messages used to promote foods for infants and young children should support optimal feeding and inappropriate messages should not be included.” The guidelines specifically preclude the indirect crosspromotion of breast-milk substitutes with other food products, as well…

A Florida federal court has rejected a Florida dairy farmer’s challenge to the state’s standard of identity for skim milk, which dictates that its nutrient content must be the same as that of unfortified whole milk, requiring the addition of vitamin A after processing. Ocheesee Creamery v. Putnam, No. 14-0621 (N.D. Fla., Tallahassee Div., order entered March 30, 2016). The farmer’s company, Ocheesee Creamery, skimmed the cream from milk and sold the leftover product as “skim milk” without fortifying it with vitamin A. Florida inspectors told the dairy farmer she must adjust the nutrient level or label the milk “imitation,” and she filed a lawsuit challenging the rule. Additional details on the case appear in Issue 555 of this Update. The court found that the state standard of identity and its federal counterpart in the federal Food, Drug, and Cosmetic Act “easily pass muster” under the First Amendment test for…

A consumer has filed a putative class action against Kraft Foods Group, Inc. alleging that the company’s Knudsen Hampshire Sour Cream is labeled as containing 60 calories with 3.5 grams of saturated fat per halfcup while the actual content is 240 calories with 14 grams of saturated fat. Appel v. Kraft Foods Grp., Inc., No. BC587662 (Cal. Super. Ct., Los Angeles Cty., filed July 9, 2015). The plaintiff further alleges that the listed sodium content of 10 milligrams and sugar content of one gram is incorrect because the sour cream actually contains 40 milligrams of sodium and four grams of sugar. The complaint does not provide the source of the plaintiff’s quadrupled figures. He alleges that Kraft has violated California consumer-protection statutes and seeks class certification, compensatory and punitive damages, restitution, an injunction, and attorney’s fees.   Issue 572

The General Court of the European Union has upheld a ruling that pomazánkové máslo, a product primarily marketed in the Czech Republic, cannot be labeled as “butter” under the single common market organization (CMO) regulation. Czech Republic v. European Commission, No. T-51/14 (Gen. Ct., order entered May 12, 2015). The product, a spread used in similar ways to butter, has a minimum fat content of 31 percent by weight, a minimum dry nonfat milk-material content of 42 percent, and a water content of up to 58 percent. The court ruled that the product does not meet the regulation’s standards, which require between 80 and 90 percent of milk-fat content, a maximum water content of 16 percent and a maximum dry material content of 2 percent. Further, the court ruled, the Czech Republic cannot circumvent the provisions of the single CMO regulation by claiming to be exempt if the product is…

The U.S. Department of Agriculture’s (USDA’s) Agricultural Marketing Service has proposed revisions to the origin of livestock requirements that govern the transition of dairy animals to organic production. Clarifying that a producer can transition dairy animals into organic production only once, the amendments would ensure that “after completion of this one-time transition, any new dairy animals that a producer adds to a dairy farm would need to be managed organically from the last third of gestation or sourced from dairy animals that already completed their transition into organic production.” The proposed rule also includes provisions for the management of breeder stock on organic livestock farms. “This proposed rule would create greater consistency in the implementation of a standard for the transition of dairy animals into organic production and for the management of breeder stock,” explains AMS in an April 28, 2014, Federal Register notice. “This proposed rule would update the regulation…

A federal court in Idaho has denied, in part, the motion to dismiss filed by state officials in a challenge filed by animal-rights activists and other groups to a law that criminalizes the undercover investigations of agricultural operations. Animal Legal Defense Fund v. Otter, No. 14-0104 (D. Idaho, order entered September 4, 2014). The court agreed to dismiss the governor who lacked enforcement authority under the law and emphasized that its rulings did not address the merits of the plaintiffs’ claims of First Amendment and Equal Protection violations, as well as preemption under three federal laws that protect whistleblowers. According to the court, the law was enacted after Mercy for Animals Dairy released a video of workers abusing cows at an Idaho dairy. The footage had been obtained by an undercover investigator who misrepresented his identity to gain access to the facility and made the audiovisual recordings without the dairy owner’s knowledge…

A federal court in Washington has determined that the U.S. Environmental Protection Agency (EPA) did not violate the Freedom of Information Act (FOIA) in responding to requests for information relating to its investigation of nitrate levels in groundwater and residential drinking water wells in the Lower Yakima Valley. Cmty. Ass’n for Restoration of the Env’t, Inc. v. EPA, No. 13-3067 (E.D. Wash., order entered August 6, 2014). Because the environmental organization (CARE), which is a plaintiff in Resource Conservation and Recovery Act (RCRA) citizen suits against the dairies whose documents are part of the FOIA requests, also alleged Administrative Procedure Act (APA) violations against EPA, the court granted its request to allow the parties to brief the merits of CARE’s APA claim. Meanwhile, the dairies subject to the RCRA actions have filed a lawsuit against EPA, seeking an order prohibiting EPA from disclosing to CARE or other members of the…

While the Dairy Farmers of America (DFA) and affiliated Dairy Marketing Services have agreed to pay $50 million to settle class claims that they conspired to monopolize the market for raw milk in the Northeast, a federal court in Vermont has denied preliminary approval of the proposed settlement without prejudice. Allen v. DFA, Inc., No. 09-0230 (U.S. Dist. Ct., D. Vt., order entered July 9, 2014). Details about the litigation appear in Issue 323 of this Update. The court pointed to a number of flaws in the draft class notice, including that it released the defendants and a number of related entities and extended beyond the legal claims in the lawsuit without making this clear to class members. The basis for its ruling, however, was that some class members apparently plan to object to the settlement, but no information about their objections was provided in the expedited motion for preliminary approval…

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