A California state court has reportedly rejected Pabst Brewing Co.’s attempt to dismiss a lawsuit brought by Snoop Dogg asserting the rapper is entitled to a portion of the proceeds obtained through the $700 million sale of the company in 2014. Spanky’s Clothing Inc. v. Pabst Brewing Co. LLC, No. BC584365 (Cal. Super. Ct., Los Angeles Cnty., rulings issued February 24, 2016). In the June 2015 complaint, the rapper argued that through a phantom equity clause in his three-year deal to endorse Blast by Colt 45®, a line of fruit-flavored alcohol beverages, he is owed part of the sale price realized by Pabst stockholders. The parties reportedly disputed over whether the court should take judicial notice of the securities sale agreement, but the court found that considering it was inappropriate at this stage of the litigation and denied the motions to dismiss the case. See Law360, February 24, 2016. …
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Cumberland Packing Corp. and a group of consumers have reached a settlement agreement in a lawsuit alleging that Cumberland Packing Corp. misrepresents its Stevia in the Raw® sweetener products as all natural despite containing genetically modified organisms. Frohberg v. Cumberland Packing Corp., No. 14-0748 (E.D.N.Y., motion filed February 22, 2016). Under the agreement, Cumberland will pay up to $1,547,000 to reimburse class members with $2.00—or 40 percent of the average purchase price—per purchase of Stevia in the Raw®, to a maximum of $16 per person. In addition, Cumberland will remove “100% Natural” or “All Natural” label claims. Issue 595
A New York state court has reportedly refused to grant the National Restaurant Association’s request for a preliminary injunction to stall the enforcement of New York City’s new requirement that chain restaurants label menu items containing 2,300 mg of salt or more, which is set to take effect March 1, 2016. Nat’l Restaurant Assoc. v. New York City Dept. of Health, No. 654024/2015 (N.Y. Super. Ct., New York Cty., order entered February 24, 2016). During the hearing, the court reportedly distinguished the rule from a ban on the ingredient, noting, “It’s not a ban. It’s information. It’s a warning.” Under the rule, chain restaurants must display a logo of a triangle with the image of a salt shaker next to applicable menu items or risk a $200 fine for each infraction. See Bloomberg, February 24, 2016. Issue 595
A Texas federal court has dismissed multidistrict litigation (MDL) alleging that Whole Foods Market Inc. lists incorrect amounts of sugar on its yogurt labels, concluding the Consumer Reports data relied on by the plaintiffs did not meet federal standards. In re Whole Foods Mkt. Inc. Greek Yogurt Mktg. & Sales Practices Litig., MDL No. 2588 (W.D. Tex., Austin Div., order entered February 16, 2016). The consumers claimed Whole Foods’ store-brand yogurt contains 11.4 grams of sugar per serving, while the listed sugar content is 2 grams. Details about some of the 11 consolidated lawsuits appear in Issues 533 and 534 of this Update. Whole Foods argued that the consumers’ claims were preempted by the federal Food, Drug, and Cosmetic Act (FDCA) because the scientific testing techniques used by Consumer Reports failed to comply with the testing methodology determined by the U.S. Food and Drug Administration. The court agreed, noting that…
A California federal court has dismissed portions of a lawsuit alleging that B&G Foods mislabeled its taco shells as containing “0g Trans Fat” despite the product’s use of partially hydrogenated oil as an ingredient. Walker v. B&G Foods, No. 15-3772 (N.D. Cal., order entered February 8, 2016). Five of the plaintiff’s seven claims involved alleged mislabeling of the taco shells as free of trans fat; the court disposed of the claims, finding that the Nutrition Labeling and Education Act required the trans fat level be listed as 0 grams if the content is less than one-half of a gram, thus preempting the claims. The court then turned to the non-labeling claims, through which the plaintiff argued the taco shells were unsafe for consumption based on the trans fat content and thus amounted to a breach of an implied warranty of merchantability and a violation of California’s Unfair Competition Law. Citing…
A consumer has filed a putative class action against Kellogg Co. alleging the company produces Mother’s Cookies® with partially hydrogenated oil (PHO), which contains trans fat, in violation of the U.S. Food and Drug Administration’s (FDA’s) ban on the ingredient. Hawkins v. Kellogg Co., No. 16-0147 (S.D. Cal., filed January 21, 2016). The plaintiff asserts FDA “determined that PHO is unsafe for use in food” in 2015, and alleges as a result that Kellogg is prohibited from using the food additive in its cookies. “Today there is no question about the scientific consensus on trans fat,” the complaint argues, in describing several studies examining the alleged human health effects of PHO consumption. For alleged violations of California consumer-protection statutes, nuisance and breach of implied warranty, the plaintiff seeks class certification, restitution, an injunction, a corrective advertising campaign and attorney’s fees. Issue 594
The Association of National Advertisers, Inc. (ANA) has filed an amicus brief in a case challenging San Francisco’s health code provisions requiring advertisements on sugar-sweetened beverages (SSBs) notifying the public of alleged health risks associated with SSB consumption. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., amicus brief filed January 22, 2016). The brief focuses on First Amendment arguments against requiring private parties to include government speech on their product labels. “The City of San Francisco’s imposition of the Warning Mandate in reaction to potential over-consumption of sugar-sweetened beverages by its citizens, whatever the merits of that concern, takes regulatory Nannyism to new levels and is wholly incompatible with First Amendment protections afforded to commercial speech,” the brief argues. “If this Court were to uphold the Board of Supervisors’ conscription of sugar-sweetened beverage ads to convey government views on health issues there would be virtually no limit to…
A Delaware cheese company and two individual defendants have pled guilty to a misdemeanor violation of the federal Food, Drug, and Cosmetic Act for distributing adulterated ricotta, queso fresco and fresh cheese curds in several neighboring states. U.S. v. Roos Foods, Inc., No. 16-0013 (D. Del., information filed January 22, 2016). Roos’ cheese was connected to a 2014 outbreak of Listeria that caused five adults and three newborns to contract listeriosis. The criminal information alleged the company produced the cheese in unsanitary conditions, including the “[f]ailure to clean food-contact surfaces as frequently as necessary to protect against contamination of food” and “failure to store raw materials or ingredients in a manner that protects against contamination.” In their agreement with the U.S. Food and Drug Administration (FDA), the defendants agreed to an injunction preventing them from processing or distributing food products until they undergo an FDA inspection and facility testing by…
The European Food Safety Authority’s (EFSA’s) Panel on Food Contact Materials, Enzymes, Flavorings and Processing Aids (CEF) has announced a public consultation on its draft statement on exposure assessment of food enzymes. Recognizing the difficulty in applying current exposure assessment guidelines to food enzymes, which are added during processing of food and food ingredients, the draft statement recommends a tiered approach based on “more realistic” exposure scenarios as opposed to methods that rely solely on upper use levels. In particular, the CEF Panel notes that food enzyme guidance adopted in 2009 stipulates that, “Potential human exposure to the food enzyme and to any other constituent or by-product of concern should be assessed considering all proposed uses. A conservative technique such as the ‘budget method’ should be used … assuming that they (i.e. foods and beverages) always contain the food enzyme at its proposed upper use level.” This budget method apparently…
The California Environmental Protection Agency’s (Cal/EPA’s) Office of Environmental Health Hazard Assessment (OEHHA) has announced the development of hazard identification materials for nickel and nickel compounds, perfluorooctanoic acid (PFOA) and its salts, and pefluorooctane sulfonate (PFOS) and its salts to assist in the agency’s consideration of the chemicals for possible listing under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Food is a major source of nickel exposure, with an average intake for adults estimated to be approximately 100 to 300 micrograms per day (µg/d), while PFOA and PFOS are chemical compounds that have been widely used in commercial and industrial applications, including food packaging and water-resistant coatings. OEHHA specifically seeks data relevant to assessing the chemicals’ reproductive toxicity for evaluation by the Developmental and Reproductive Toxicant Identification Committee. Comments are due by April 4, 2016. See OEHHA News Release, February 19, 2016. Issue 594
