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The American Academy of Pediatrics (AAP) has announced new recommendations limiting the amount of fruit juice that children consume to reduce the risk of obesity and dental caries. Whole fruit is preferable to fruit juice for nutrition and healthy weight gain, the group stated, because 100 percent juice is mostly water, with small amounts of vitamins and minerals and no fiber. The recommendations further specify that infants should not have fruit juice at all during their first year, and toddlers should be limited to 4 ounces a day. AAP also recommends that juices be pasteurized to reduce the risk of E. coli, Salmonella and Cryptosporidium.   Issue 636

The U.S. Department of Justice (DOJ) has obtained a consent decree against Valley Milk Products LLC prohibiting the sale of more than four million pounds of milk powder products and preventing the company from manufacturing the products in the future. U.S. v. All 50 pound high heat nonfat dry milk powder (Grade A), No. 16-­0076, (W.D. Va., order entered March 17, 2017). DOJ seized dry milk and dry buttermilk products at the company’s Strasburg, Virginia, facility in November 2016 after FDA inspections found unsanitary conditions and confirmed samples of Salmonella and Listeria. According to the U.S. Food and Drug Administration, the Salmonella strains were “nearly identical” to strains found at Strasburg in 2010, 2011 and 2013, indicating “the existence of persistent/resident strain and harborage” of the bacteria at the facility. DOJ also alleged the products were “contaminated with filth” after inspectors found dark brown droplets forming on metal surfaces of…

A New York federal court has dismissed a putative class action against Chipotle Mexican Grill Inc. alleging the burrito chain violated the Securities and Exchange Act of 1934 by making material misrepresentations about the company’s response to food-borne illnesses linked to its stores. Ong v. Chipotle Mexican Grill, Inc., No. 16­0141 (S.D.N.Y., order entered March 8, 2017). The court has granted the plaintiffs, led by Metzler Investment GmbH and Construction Laborers Pension Trust of Greater St. Louis, leave to amend. Chipotle’s stock price dropped in 2015 after outbreaks of foodborne illnesses, including norovirus, E. coli and Salmonella, were linked to its stores. As a result, Chipotle profits declined by 95 percent in 2016 as compared to the year before. The plaintiffs alleged that Chipotle and three of its executives misled shareholders and the public in the statements and reports it released about the outbreaks, although Chipotle predicted poor performance in…

The widow of a Vermont man who died after eating raw­milk cheese allegedly contaminated with Listeria monocytogenes has filed suit against the manufacturer of the cheese, Vulto Creamery. Friedman v. Vulto Creamery LLC, No. 17­-0283 (N.D.N.Y., filed March 10, 2017). Vulto issued a recall of its Ouleout, Miranda, Heinennellie and Willowemoc raw-­milk cheeses in March 2017 after the U.S. Food and Drug Administration identified Ouleout as the source of a Listeria outbreak that began in September 2016. The complaint asserts that multiple people became ill or died after eating Vulto’s Ouleout. For alleged strict liability, breach of warranty, negligence and negligence per se, the plaintiff is seeking damages and attorney’s fees.   Issue 627

The U.S. Food and Drug Administration (FDA) has denied a February 9, 2012, petition filed by the Center for Science in the Public Interest (CSPI) that requested “a performance standard of non-detectable as determined by the best available method of detection for Vibrio vulnificus in molluscan shellfish intended for raw or processed raw consumption.” Citing V. vulnificus as “the leading cause of seafood-associated deaths in the United States,” the petition notes that FDA already enforces a zero tolerance standard for V. vulnificus in ready-to-eat fish and a non-detectable standard of less than 30 most probable numbers per gram (MPN/g) for post-harvest processed shellfish. According to CSPI, the Food Safety Modernization Act directs the agency to set performance standards for significant foodborne contaminants. In rejecting the petition, FDA notes that other strategies—including state adherence to and federal oversight of control measures designed to manage V. vulnificus risk—have effectively reduced oyster-associated V.…

The Fourth Circuit Court of Appeals has upheld a lower court’s determination that the U.S. Food and Drug Administration (FDA) had the discretion to issue an incorrect contamination warning about Salmonella-tainted tomatoes, which devalued a tomato farmer’s crop by $15 million. Seaside Farm v. United States, No. 15-2562 (4th Cir., order entered December 2, 2016). Details about the lower court’s decision appear in Issue 588 of this Update. The lawsuit stemmed from FDA’s warning against eating raw tomatoes in 2008 following an outbreak of Salmonella that was later traced to jalapeno and Serrano peppers. Seaside Farm filed suit alleging FDA negligently issued the warning, impairing the value of its crop. The trial court found that FDA was acting within its discretion to issue the warning. Seaside argued that FDA’s warning was overly broad and based on insufficient evidence, noting that the agency failed to test any tomatoes before issuing its…

Christian Rivas, owner of Oasis Brands Inc., has been sentenced to 15 months in prison for two charges that he sold cheese contaminated with Listeria monocytogenes after the U.S. Food and Drug Administration (FDA) instructed the company to stop distribution until it remedied its practices. FDA inspected Oasis in August 2014, found several violations and required Oasis to halt distribution of any products until they were cleared by laboratory testing. Rivas continued distributing Oasis' cheese, which then failed a random Listeria test at a Virginia grocery store. In addition to his 15 months in prison, Rivas is subject to one year of supervised release. See South Florida Business Journal, November 16, 2016.   Issue 623

The Humane Society of the United States (HSUS) has reportedly filed a complaint with the U.S. Federal Trade Commission (FTC) urging the agency to investigate Natural Pasteurized Eggs, producer of Davidson’s eggs, because the company allegedly keeps its “birds permanently locked in cages so tightly they can’t even spread their wings.” HSUS argues the packaging of Davidson’s eggs misleads consumers by featuring “lush open pastures, a red barn and free-roaming hens” even though those hens “never feel sunlight nor touch a blade of grass.” Further, HSUS asserts that the company “claims its process ‘eliminates the risk of Salmonella' from eggs even though caged hens are more likely to spread infection and disease.” According to the Chicago Tribune, FTC has not taken action on a complaint related to egg marketing since 1996. See HSUS Press Release and Chicago Tribune, October 14, 2016.   Issue 620

Chipotle Mexican Grill Inc. and its customers who consumed tainted food during outbreaks of E. Coli, Salmonella and norovirus have reportedly reached a settlement agreement. Terms of the agreement were not disclosed except for one class member’s request to receive vouchers for free burritos. One case in the litigation is still pending. See The Denver Post, September 9, 2016. Chipotle was also hit with an unrelated lawsuit in California alleging the company fired an employee for saying that her Latino coworkers received preferential treatment. The plaintiff argues that after a Latina woman was promoted to the district manager position, Latino employees began receiving more favorable day shifts while other employees received night shifts. When the plaintiff complained about the scheduling to a Latino manager, she was allegedly told that “black girls always have attitude.” See CBS Los Angeles, September 13, 2016.   Issue 617

The Centers for Disease Control and Prevention (CDC) and Department of Health and Human Services (HHS) have announced the addition of an emerging Bacillus cereus strain that causes anthrax-like disease to the HHS list of Select Agents and Toxins. “Bacillus cereus Biovar anthracis is a recently recognized, emerging pathogen[] that has all the virulence characteristics and threat potential of Bacillus anthracis, a Tier 1 select agent,” states the interim final rule, which takes effect October 14, 2016. “This organism is not currently on the HHS List of Select Agents and Toxins; we are proposing regulating this organism as a Tier 1 select agent because of its potential for misuse and its threat to public health and safety.” HHS defines a biovar as “a group of microorganisms that are genetically similar but differ from other members of the species by biochemical or genetic characteristics.” Isolated from gorillas and chimpanzees with anthrax-like illness,…

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