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A New Jersey man has filed a lawsuit against a produce supplier for its role in a Salmonella Kiambu outbreak in 12 states linked to Mexican papayas that has sickened 47 people and reportedly caused one death. Colon v. Grande Produce, No. 17-5458 (D.N.J., filed July 26, 2017). The plaintiff alleges that he fell ill in June 2017 after consuming a papaya imported by Grande Produce and was later diagnosed with Salmonella-induced illness. Claiming strict product liability, negligence and breach of warranties, the plaintiff seeks damages and attorney’s fees. On July 26, Grande Produce announced it had issued a limited recall of Caribeña Maradol papayas distributed between July 10- 19, but the U.S. Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention are warning consumers to avoid all Mexican Maradol papayas regardless of the source. An FDA recall notice stated, “The FDA notes that there are…

Food & Water Watch, a consumer advocacy group, has filed suit against the U.S. Department of Agriculture (USDA) and the Food Safety and Inspection Service over the agencies’ denial of the group’s Freedom of Information Act (FOIA) requests asking for the names of companies that opted to participate in the New Poultry Inspection System (NPIS). Food & Water Watch, Inc. v. U.S. Dep’t of Agric., No. 17­-1133 (D.D.C., filed June 9, 2017). USDA implemented the optional NPIS in an effort to reduce rates of foodborne illness attributable to chicken and turkey contaminated with Salmonella and Campylobacter. Food & Water Watch requested the identities of the companies that chose to participate in NPIS, but their FOIA requests were denied on the grounds that “the responsive records consist solely of confidential future business plans.” Alleging violations of FOIA, the plaintiff is seeking an order for disclosure of the requested records and attorney’s…

A Colorado federal court has dismissed a shareholder derivative action against Chipotle alleging the company’s officers and directors of food­-safety oversight failed to take action to prevent outbreaks of foodborne illness. Gubricky v. Ells, No. 16­-2011 (D. Colo., order entered June 7, 2017). The plaintiff claimed the defendants had failed to implement and enforce effective food-safety procedures, monitor compliance with food-safety laws or commit necessary resources to store audits and risk assessment after a series of foodborne­ illness outbreaks. The complaint further alleged that the board failed to take action or offer sick employees paid leave until 2015, seven years after the outbreaks began. In a shareholder derivative suit, plaintiffs must plead “with particularity” why demanding the corporate board to take corrective action would be futile, the court said, but the plaintiff failed to plead facts specific to each director establishing a “substantial likelihood of personal liability.” The plaintiff must…

The U.S. Supreme Court has denied certiorari in a six-­state coalition's attempt to block enforcement of a California law requiring egg­-production facilities to provide hens enough space to extend their limbs and turn around. Missouri v. Becerra, No. 16­-1015 (U.S., denial of certiorari entered May 30, 2017). The rule affects private egg producers within each state, but the U.S. Court of Appeals for the Ninth Circuit found that this interest did not convey standing upon the states. Additional details on the circuit court's decision appear in Issue 623 of this Update. The high court also denied certiorari to Austin "Jack" DeCoster and his son Peter, who sought to appeal the prison sentences they received for their roles in a 2010 Salmonella outbreak that sickened thousands across the United States. DeCoster v. United States, No. 16-­877 (U.S., denial of certiorari entered May 18, 2017). The men, former executives of Quality Egg…

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 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…

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

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