Tag Archives New York

A Suffolk County, New York, legislative committee on March 3, 2009, voted unanimously to prohibit the packaging chemical bisphenol A (BPA) from polycarbonate baby bottles. According to published reports, the bill goes before the full Suffolk County Legislature next week. The vote would reportedly ban BPA from baby bottles and cups sold in the county that are intended for children ages 3 or younger. Similar bills are under consideration in Washington state, Minnesota and Connecticut. See Foodproductiondaily.com, March 4, 2009.

The district court judge to whom this obesity-related litigation was reassigned in 2008 has dismissed motions to compel filed by plaintiffs and defendants, but has given the parties leave to renew after the court rules on motions for class certification. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., filed Sept. 30, 2002). Judge Robert Sweet recused himself from the proceedings following the pre-trial conference, held April 9, 2008, and the matter was reassigned to Judge Sidney Stein in May. The plaintiffs, a putative class of obese and overweight teens, alleged that the fast-food company misled them with deceptive ads. They are seeking damages for obesity-related health problems. Information about the lawsuit has periodically appeared in this Update since it was filed in 2002. It has been appealed twice to the Second Circuit Court of Appeals, its issues have been narrowed, and it has been followed closely by consumer advocates and the food…

The Second Circuit Court of Appeals has affirmed a lower court ruling that rejected the restaurant industry’s preemption and First Amendment challenge to New York City’s health code provision mandating that certain restaurant chains post calorie information on their menu boards. New York State Rest. Ass’n v. NYC Bd. of Health, No. 08-1892 (2d Cir., decided February 17, 2009). The rule has been in effect since July 2008 and applies to restaurants that are part of chains with at least 15 outlets nationwide. The New York State Restaurant Association contended that the rule was preempted by the Nutrition Labeling and Education Act and infringed its members constitutional rights by compelling speech. According to the court, “In requiring chain restaurants to post calorie information on their menus, New York City merely stepped into a sphere that Congress intentionally left open to state and local governments. Furthermore, although the restaurants are protected…

New York Governor David Paterson (D) has reportedly proposed an 18 percent tax on soft drinks and other non-diet sweetened beverages as part of his plan to lessen a $1.5 billion shortfall in the state’s annual budget. The tax would purportedly raise $404 million, but industry leaders have called the maneuver a “money grab” that would hurt union jobs at major bottlers located in the state. “We think that everybody has to keep in mind that we’re in a recession, and in an economy like this, the last thing we should be doing is raising taxes on everyday needs like clothing and groceries. That doesn’t wash with the consumer,” an American Beverage Association spokesperson was quoted as saying. See Times Union, December 14, 2008; Advertising Age, December 15, 2008. Meanwhile, a recent New York Times op-ed column hails the proposal as a “landmark effort that, if other states follow, could help…

A multidistrict litigation court (MDL) in New York has dismissed putative class claims filed against PepsiCo., Inc. for allegedly misrepresenting the source of its Aquafina® bottled water, “by using a label designed to create the impression that the water came from a mountain source and failing to inform consumers that the true source . . . was public drinking supplies commonly known as ‘tap water.’” In re: PepsiCo., Inc. Bottled Water Mktg. & Sales Practices Litig., MDL No. 1903 (S.D.N.Y., decided December 5, 2008). The court determined that plaintiffs’ state-law unfair and deceptive trade practices claims were expressly preempted under the Food, Drug, and Cosmetic Act (FDCA). According to the court, “the FDCA’s statutory framework and regulatory history . . . reveal that the FDA specifically addressed the disclosure of source information and determined, in its expert opinion, that representations of source are immaterial in the context of purified water.”…

The City University of New York Campaign Against Diabetes and the Public Health Association of New York City (PHANYC) have published a report, titled Reversing Obesity in New York City: An Action Plan for Reducing the Promotion and Accessibility of Unhealthy Food, that aims to educate policy makers, advocates and health professionals about food policy issues. Focused on lowering obesity rates in New York City, the report asks local government to: (i) “create local healthy food zones” in schools, churches, health centers, and other public institutions; (ii) “use zoning laws to reduce density of unhealthy food outlets”; (iii) “strengthen oversight of deceptive health claims in food advertising”; (iv) “discourage racial/ethnic targeting of unhealthy food advertisements”; (v) “tax unhealthy food such as sweetened soda and other beverages”; (vi) “support counter-advertising campaigns against unhealthy foods”; and (vii) “restrict advertising and promotion of unhealthy food.” In addition, CUNY Campaign Against Diabetes and PHANYC…

New York attorney Samuel Hirsch has filed lawsuits against fast food companies on behalf of two classes of plaintiffs who are allegedly obese and have developed diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, and other adverse health effects from consuming defendants’ products. Barber v. McDonald’s Corp., No. 23145/2002 (N.Y., Super. Ct., filed July 24, 2002); Pelman v. McDonald’s Corp., No. 24809/2002 (N.Y. Super. Ct., filed August 22, 2002). The cases involve a class of adult plaintiffs and a class of children. The complaints are being brought on theories of (i) unfair and deceptive practices, (ii) failure to warn, and (iii) negligence in selling products high in fat, salt, sugar, and cholesterol, and in marketing to children, in marketing addictive products, and in enticing plaintiffs to consume larger portions in “value meals” and “meal combos.” According to news sources, the named adult plaintiff, Caesar Barber, 56, did not realize that consumption…

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