The Ninth Circuit Court of Appeals has affirmed a lower court’s decision that California cannot enforce its statute regulating the empty space between a product and its packaging against producers of meat and poultry products, finding that the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) preempt the statute. Del Real v. Harris, No. 13-16893 (9th Cir., order entered February 12, 2016). California Attorney General Kamala Harris appealed a district court’s permanent injunction barring enforcement of the slack-fill law against Del Real, which produces heat-and-serve meat and poultry products. The appeals court’s opinion cites precedent interpreting the FMIA and PPIA as creating a uniform national labeling standard. “When the FMIA and PPIA’s express preemption clauses are read in light of Congress’s concern for uniformity and a lesser level of regulation, it is unlikely that Congress intended for the states to be allowed to develop and apply…
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The U.S. Department of Agriculture’s (USDA’s) Agricultural Marketing Service has completed the 2016 sunset process for five synthetic and two non-synthetic (natural) substances on the National List of Allowed and Prohibited Substances that governs the use of synthetic and nonsynthetic substances in organic production, processing and handling. Per the National Organic Standards Board’s recommendations, AMS has renewed approvals for the following synthetic substances used in organic crop production: (i) ferric phosphate for use as slug bait; and (ii) hydrogen chloride for delinting cotton seed for planting. It has also renewed approvals for the following non-agricultural ingredients used in or on organic products: (i) L-malic acid; (ii) any food grade bacteria, fungi, and other microorganism; (iii) activated charcoal from vegetative sources, for use only as a filtering aid; (iv) peracetic acid/peroxyacetic acid when used in wash and/or rinse water according to Food and Drug Administration limitations, for use as a sanitizer…
Refuting earlier claims that California wines allegedly contain “dangerously high” levels of arsenic, a new study has concluded that inorganic arsenic in blush, white and red California wines “does not represent a health risk for consumers.” Dennis Paustenbach, et al., “Analysis of Total Arsenic Content in California Wines and Comparison to Various Health Risk Criteria,” American Journal of Enology and Viticulture, January 2016. Using inductively coupled plasma mass spectrometry to characterize the arsenic content of 101 wines produced or bottled in California, the authors evidently found that blush wines contained the greatest total arsenic concentration, followed by white and then red wines. In particular, the study tested 28 wines singled out in media reports as exceeding the U.S. Environmental Protection Agency’s maximum contaminant level for arsenic in drinking water of 10 μg/L. But even though these wines contained more total arsenic than randomly selected products, “no more than 0.3% of…
The Centers for Disease Control and Prevention (CDC) has released the latest statistics on sugar-sweetened beverage (SSB) consumption in 23 states and the District of Columbia, concluding that, in 2013, approximately 30 percent of surveyed adults reported drinking at least one SSB per day. Sohyun Park, et al., “Prevalence of Sugar-Sweetened Beverage Intake Among Adults—23 States and the District of Columbia, 2013,” Morbidity and Mortality Weekly Report, Feb. 26, 2016. Relying on data gathered via Behavioral Risk Factor Surveillance System (BRFSS) telephone survey, the study refined previous questionnaires to solicit information about the consumption of sweet tea and energy drinks in addition to regular soda and sweetened fruit beverages. The results evidently indicate that “at least once daily SSB intake was most common among persons aged 18–24 years (43.3%), men (34.1%), blacks (39.9%), persons who reported being unemployed (34.4%), and persons with less than a high school education (42.4%).” Across…
Citing environmental concerns, the German city of Hamburg has reportedly banned the use of coffee pods in government buildings. Hamburg’s Guide to Green Procurement reportedly states that coffee pods cause “unnecessary resource consumption and waste generation, and often contain polluting aluminum.” “It’s 6 grams of coffee in 3 grams of packaging,” a Hamburg Department of the Environment and Energy official said. “We in Hamburg thought that these shouldn’t be bought with taxpayers’ money.” See VICE.com, February 24, 2016; The Telegraph, February 25, 2016. Issue 595
A consumer has filed a putative class action against The Wendy’s Co. alleging a failure to sufficiently secure customer payment card data. Torres v. Wendy’s Co., No. 16-0210 (M.D. Fla., filed February 8, 2016). Wendy’s announced in late January 2016 that it had discovered in its processing systems a software program designed to steal credit and debit card information, several weeks after the plaintiff discovered that his debit card had been used in fraudulent purchases totaling almost $600. “Wendy’s could have prevented this Data Breach,” the complaint asserts. “The malicious software used in the Data Breach was more than likely a variant of ‘BlackPOS,’ the identical malware strain that hackers used in last year’s data breach at many other retail establishments. While many retailers, banks and card companies responded to recent breaches by adopting technology that helps make transactions more secure, Wendy’s has acknowledged that it has retained a security consultant to…
A consumer has filed a putative class action against Carrington Tea Co. alleging the company advertises its coconut oil as “a healthy alternative to butter and various cooking oils, despite that coconut oil is actually inherently unhealthy, and a less healthy option to these alternatives.” Boulton v. Carrington Tea Co., No. B609360 (Cal. Super. Ct., Los Angeles Cty., filed February 4, 2016). Coconut oil “is approximately 90 percent saturated fat” and “increases the risk of [coronary heart disease] and stroke” as well as other negative health effects, the complaint asserts. Despite these effects, the plaintiff argues, Carrington markets its coconut oil as healthy, and further, “Carrington’s labeling claims are designed to conceal or distract consumers from noticing that its Carrington Farms coconut oils are pure fat” by including the phrase “Healthy Foods for a Healthy Soul” and claiming that “Carrington Farm’s cold-pressed organic extra virgin coconut oil is the most…
A consumer has filed a lawsuit against Kraft Heinz Foods Co. alleging the company sells its grated Parmesan as “100% Grated Parmesan Cheese” despite containing “significant amounts of adulterants and fillers,” including cellulose, or “wood pulp.” Lewin v. Kraft Heinz Foods Co., No. 16-0823 (N.D. Cal., filed February 18, 2016). The lawsuit comes in the wake of a Bloomberg Business article investigating the content of several leading companies’ grated-Parmesan products. The plaintiff alleges that the 3.8 percent of the product composed of cellulose precludes Kraft from labeling its cheese as “100% Grated Parmesan.” For allegations of misrepresentation, fraud and violations of California’s consumer-protection statutes, the plaintiff seeks class certification, damages and an injunction. For its investigation, Bloomberg hired a laboratory to test grated-Parmesan products for levels of cellulose, an additive often described as “wood pulp” approved for use in food in amounts up to 4 percent. The tests apparently found higher…
An Alberta court has reportedly approved a settlement agreement in a class action stemming from an E. coli outbreak that resulted in the recall of nearly 4 million pounds of beef in Canada and the United States, amounting to the largest meat recall in Canadian history. Harrison v. XL Foods Inc., No. 1203-14727 (Can. Alta. Q.B., order entered February 17, 2016). Under the settlement agreement, the class is open to consumers in Canada and the United States who either purchased XL Foods Inc.’s beef, thereby suffering an economic injury, or consumed it, causing them to contract an illness. Eligible class members can receive a full refund with proof of purchase or CAN $25 without. See CBC News, February 17, 2016. Issue 595
A California federal court has dismissed a lawsuit against Chipotle Mexican Grill Inc. alleging the company falsely advertises its food as free of genetically modified organisms (GMOs) despite selling meat and dairy produced from animals fed GMO products as well as soft drinks manufactured with GMO corn syrup. Gallagher v. Chipotle Mexican Grill, Inc., No. 15-3952 (N.D. Cal., order entered February 5, 2016). The plaintiff had failed to plausibly plead her allegations, the court found, because she failed to specify which products she purchased. Accordingly, the court granted Chipotle’s motion to dismiss but allowed the plaintiff leave to amend. Additional information about the complaint appears in Issue 577 of this Update. Meanwhile, a jury ordered Chipotle to pay $351,936 in back pay and $255,000 in punitive damages to three female former managers at restaurants near Cincinnati, Ohio, over allegations of gender discrimination. Rogers v. Chipotle Mexican Grill Inc., No. 13-0146…
