Claims Rejected: Deregulation of GE Alfalfa, Lead in Fruit Juice, MDL Transfer of “All Natural” Skinnygirl Margarita® Actions, U.S. Supreme Court Review of $97.4-Million Nicaraguan Judgment in Banana Worker Exposure to Pesticides
According to news sources, the Center for Food Safety, which lost its challenge
to the U.S. Department of Agriculture’s (USDA’s) decision to deregulate
without restriction genetically engineered (GE) alfalfa, plans to appeal the
matter to the Ninth Circuit Court of Appeals. A federal court in California
determined on January 5, 2012, that the law does not require the agency to
“account for the effects of cross-pollination on other commercial crops” in
assessing whether a new crop poses risks.
U.S. District Judge Samuel Conti also reportedly said that USDA lacks the authority to require a buffer zone between GE crops and conventional or organic crops. Noting that the Environmental Protection Agency (EPA) has approved the use of glyphosate on Roundup Ready® alfalfa, Conti further observed, “If plaintiffs’ allegations are true, then it is disturbing that EPA has yet to assess the effects of glyphosate on most of the species found near the acreage on which [GE alfalfa] will be planted and glyphosate will be used.” See Capital Press, January 5, 2012; San Francisco Chronicle, January 7, 2012; Sustainable Food News, January 8, 2012; Food Chemical News, January 9, 2012.
A multidistrict litigation (MDL) court in Massachusetts has granted the motion to dismiss filed by a number of fruit juice manufacturers defending consolidated class actions alleging that they failed to disclose the presence of lead in their products. In re: Fruit Juice Prods. Mktg. & Sales Practices Litig., No. 11-02231 (D. Mass, filed December 21, 2011). Most of the allegations involved purported violations of consumer protection laws; the plaintiffs also alleged breach of implied warranties of merchantability and fitness for a particular purpose and unjust enrichment. According to the court, the plaintiffs lacked standing to bring the claims because they failed “to allege any actual injury caused by their purchase and consumption of the products.”
The plaintiffs’ claim that they risked future harm from lead poisoning was “too
speculative to constitute injury in fact,” and their economic injury allegation,
said the court, “lacks substance.” Regarding the economic injury, the court
also stated, “The fact is that Plaintiffs paid for fruit juice, and they received
fruit juice, which they consumed without suffering harm. The products have
not been recalled, have not caused any reported injuries, and do not fail to
comply with any federal standards. The products had no diminished value
due to the presence of the lead. Thus, Plaintiffs received the benefit of the
bargain, as a matter of law, when they purchased these products.”
The U.S. Judicial Panel on Multidistrict Litigation has issued an order denying the transfer of six actions pending in six districts involving claims that the defendants’ Skinnygirl Margarita® beverage was marketed as “all natural” despite containing sodium benzoate. In re: Skinnygirl Margarita Beverage Mktg. & Sales Practices Litig., MDL No. 2306 (J.P.M.L., decided December 14, 2011). According to the panel, the central allegation “appears to be undisputed, and plaintiffs have failed to detail how pretrial proceedings would benefit from centralization. Consequently, the common material disputed facts may be limited in number.” Additional details about the case appear in Issue 409 of this Update.
The U.S. Supreme Court has rejected a request that it review an Eleventh
Circuit Court of Appeals ruling that a $97.4 million Nicaraguan court judgment
against Dole Food Co. cannot be enforced in the United States. Osorio
v. Dow Chem. Co., No. 11-602 (U.S., certiorari denied January 9, 2012). More
information about the case, which involves claims by 150 banana plantation
workers that exposure to the pesticide DBCP caused their sterility, appears in
Issue 324 of this Update.
