According to a press report, the D.C. Circuit Court of Appeals has refused the request of Whole Foods Market, Inc. that the court reconsider, en banc, a July 2008 decision by a three-judge appellate court panel reviving the Federal Trade Commission’s antitrust challenge to the company’s merger with Wild Oats Markets, Inc. More information about the panel’s divided ruling appears in issue 269 of this Update. The commission will conduct administrative hearings on the merger in February 2009. While the merger was completed in August 2007, the commission could apparently try to stop further integration of the companies’ operations or require Whole Foods to sell some properties. In a statement, Whole Foods reportedly indicated its intent to vigorously defend the administrative proceedings, “even though we believe it is
an unfair process and a violation of the company’s due process rights.” See Dow Jones Newswires, November 21, 2008.

Meanwhile, a Chicago Tribune reporter focused on Whole Foods in an article appearing before Thanksgiving that discussed how the company’s product labels may not fully protect consumers with certain food allergies. According to reporter Sam Roe, hundreds of products in Whole Foods’ brand lines contain “good manufacturing practices” labels, which are supposed to mean that tree nuts, soy, milk or other potential allergens were strictly segregated in the manufacturing process. A Tribune investigation apparently found that the foods were
not, in fact, manufactured in a way that would pose no risks to those with allergies. A company official reportedly insisted that its allergen-control practices are effective, stating “We sell millions of individual products each year, and the number of substantial allergen related-incidents that we see are in the single digits.” See Chicago Tribune, November 23, 2008.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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