In a letter sent to Nickelodeon and its parent company Viacom, Sens. Richard Blumenthal (D-Conn.), Jay Rockefeller (D-W.V.), Tom Harkin (D-Iowa), and Dick Durbin (D-Ill.) have called on the children’s entertainment network to stop showing advertisements for purportedly unhealthy foods and beverages that are “powerfully promoting childhood obesity.” Citing another company’s announcement last year that it would no longer accept advertisements for unhealthy foods on television, radio and websites directed at children, the senators asked Nickelodeon to “promptly take similar action to implement strong nutrition standards for all of its marketing to children.” “As a leading multi-media entertainment destination for children and adolescents, Nickelodeon has a special opportunity—and responsibility —to help address our nation’s childhood obesity epidemic,” the senators stated. “We ask that you implement a clear policy to guide the marketing of food to children on Nickelodeon’s various media platforms, including the advertisements on your channels, Internet sites, and…
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The National Academies of Sciences, Engineering and Medicine (NAS) has released a study examining research into man-made gene drives, a type of gene editing that allows for the spread of gene modifications “throughout a population of organisms intentionally.” Titled Gene Drives on the Horizon: Advancing Science, Navigating Uncertainty, and Aligning Research with Public Values, the report focuses on techniques that use segments of bacterial DNA—such as clustered regularly-interspaced short palindromic repeats (CRISPR)—paired with a guide protein (CRISPR-associated protein 9, or Cas9) “to make targeted cuts in an organism’s genome.” Organisms modified using CRISPR-Cas9 then pass these changes to their offspring through sexual reproduction, a process that allows scientists to alter whole populations in an effort to eradicate insect-borne infectious diseases, for example. Calling these developments “both encouraging and concerning,” the report seeks to provide “an independent, objective assessment of the state of knowledge and responsible practices for research, risk assessment,…
Betty Inc., a Connecticut-based advertising agency, has filed a lawsuit alleging PepsiCo Inc. used its idea for a Super Bowl commercial without payment or attribution. Betty Inc. v. PepsiCo Inc., No. 16-4215 (S.D.N.Y., filed June 7, 2016). The complaint asserts that employees of Betty presented the idea for “All Kinds/Living Jukebox,” a tour through different musical genres and styles of dance representing the “Joy of Pepsi®,” in November 2015, then accepted PepsiCo’s request to refine the idea for a payment of $5,000. Betty argues it refined the idea but told PepsiCo that the $5,000 did not transfer any rights of use or ownership of the advertising concept. PepsiCo did not seek to further produce the concept after the refinement, but “[t]he Super Bowl halftime commercial PepsiCo aired during the 2016 Super Bowl copies, is fundamentally based on, and is derivative of, the ‘All Kinds/Living Jukebox’ advertising storyline Betty presented to…
A California federal court has granted voluntary dismissal to the plaintiff in a putative class action alleging P.F. Chang’s China Bistro Inc. discriminates against customers with a gluten allergy by adding a surcharge to gluten-free dishes. Phillips v. P.F. Chang’s China Bistro Inc., No. 15-0344 (N.D. Cal., San Jose Div., order entered June 6, 2016). The order granted dismissal to the plaintiff with prejudice but without prejudice as to the putative class, leaving the possibility that another plaintiff may step into the lead plaintiff role. The court also imposed the defendant’s costs on the plaintiff. Details on the complaint appear in Issue 555 of this Update. Issue 607
A Massachusetts federal court has dismissed a lawsuit alleging ACH Food Companies Inc. mislabeled its Weber® barbecue sauce as “All Natural” despite containing caramel coloring, finding that a $75 rebate rendered the case moot. Demmler v. ACH Food Cos. Inc., No. 15-13556 (D. Mass., order entered June 9, 2016). Details about the complaint appear in Issue 582 of this Update. The court found ACH had tendered full relief to the plaintiff by sending him treble statutory damages. Further, “the $75 check did not represent a settlement offer—ACH sent the check unprompted, and did not impose any preconditions on [the plaintiff] for doing so. This distinction makes all the difference,” the court held. The plaintiff could not pursue damages when he had already been made whole, the court noted, and his “refusal to accept the $75 is immaterial. The question under Article III is whether a live case or controversy exists,…
Following a May 2016 refusal to invalidate a San Francisco regulation requiring warning labels on sugar-sweetened beverages (SSBs), a California court has granted an injunction on enforcement pending appeal. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., order entered June 7, 2016). Details on the May 2016 decision appear in Issue 605 of this Update, while additional information on the lawsuit appears in Issues 573, 586 and 592. The ordinance, set to take effect July 25, 2016, requires billboards and other public advertisements to include a warning that “[d]rinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.” The American Beverage Association (ABA) challenged the regulation on First Amendment grounds, but the court denied a preliminary injunction, finding the industry group’s claims unlikely to succeed. “[A]n injunction pending appeal may be appropriate, even if the Court believed its analysis in denying preliminary injunctive relief is…
The Philadelphia City Council Committee of the Whole has backed a 1.5 cents per-ounce tax on sugar-added and artificially sweetened soft drinks, a measure that the council anticipates will raise $91 million over the next year. If approved by final vote as expected, the tax will “fund quality pre-K expansion, community schools, reinvestment in parks and recreation centers, and help pad the City’s General Fund,” according to a June 8, 2016, press release. Philadelphia Mayor Jim Kenney (D) initially proposed a 3-cents-per-ounce levy on sugar-sweetened beverages, but the council concluded that such an increase would raise more revenue than needed. Instead, the committee opted to reduce the tax to 1.5 cents per ounce while expanding the scope to include diet soft drinks. The council also advanced a bill “offering tax credits to merchants that opt to sell healthy beverages in their stores.” “A 1.5-cent-per-ounce tax increase on soft drinks will…
The Good Food Institute (GFI) has filed a lawsuit seeking to compel the U.S. Food and Drug Administration (FDA) to disclose records “related to FDA’s regulatory treatment of the common and usual name ‘soy milk’ or ‘soymilk’ to refer to a liquid food derived from the cooking and processing of whole soybeans with water.” Good Food Inst. v. FDA, No. 16-1052 (D.D.C., filed June 6, 2016). The organization asserts that FDA has been inconsistent in its opinion of “soy milk,” citing two warning letters to soy-milk producers requesting them to use “soy beverage” or “soy drink” instead. “Notwithstanding FDA’s varying positions on the matter, many major brands of soy milk continue to label their products as ‘soy milk’ or ‘soymilk.’ This has resulted in consumer confusion and an uneven competitive landscape,” the complaint argues. GFI submitted Freedom of Information Act requests to FDA in April 2016 and asserts that it…
A study allegedly linking prenatal bisphenol A (BPA) exposure to increased fat mass index (FMI) in children has suggested that the common plasticizer “contribute[s] to developmental origins of adiposity.” Lori A. Hoepner, et al., “Bisphenol A and Adiposity in an Inner-City Birth Cohort,” Environmental Health Perspectives, May 2016. Using data from 369 mother-child pairs enrolled in the Columbia Center for Children’s Environmental Health New York City birth cohort, the study authors assessed the urinary BPA of mothers during the third trimester of pregnancy and followed up with their children from birth through age 7. Their analysis purportedly shows that although “prenatal BPA concentrations were not associated with birth weight,” they were “positively associated” with FMI, body fat percentage and waist circumference (WC) at age 7 years. Upon closer examination, prenatal BPA exposure was significantly associated with increased FMI and WC in girls, but not boys. As the study further explains, “These…
The Center for Science in the Public Interest (CSPI) has filed a lawsuit seeking to compel the U.S. Food and Drug Administration (FDA) to act on the organization’s 2012 citizen petition seeking establishment of a performance standard for controlling Vibrio vulnificus, bacteria responsible for several deaths related to seafood consumption. Ctr. for Sci. in Pub. Interest v. FDA, No. 16-0995 (D.D.C., filed May 25, 2016). CSPI argues that FDA has violated the Administrative Procedure Act by delaying its response to CSPI’s citizen petition urging the agency “to establish a performance standard of nondetectable for V. vulnificus in raw molluscan shellfish” under the Food Safety Modernization Act. “Every year, people are getting sick and some are dying from what is a completely preventable disease,” CSPI Senior Food Safety Attorney David Plunkett said in a May 26, 2016, press release. “For too long the FDA has observed these illnesses and deaths from…
