The U.S. Court of Appeals for the Second Circuit has affirmed a lower court’s dismissal of a lawsuit against Kellogg Co. alleging the company owed a man compensation after it implemented an idea for a portable breakfast the man had submitted through the company’s online portal for innovative ideas. Wilson v. Kellogg Co., No. 15-2237 (2nd Cir., order entered January 13, 2016). The man submitted an idea for a beverage flavored like cereal milk, but Kellogg apparently told him it was not interested in pursuing the idea. The company later obtained a trademark for “Kellogg’s Breakfast to Go” and began selling a similar product under the name in 2013. The man sought compensation for the idea, but Kellogg argued that the terms and conditions the man had agreed to upon submission limited his ability to recover any money for a successful submission. The Second Circuit agreed, finding that the terms…
Posts By Shook, Hardy & Bacon L.L.P.
A New York federal court has denied Fifth Generation, Inc.’s motion to dismiss a lawsuit arguing that its Tito’s Handmade Vodka® is falsely advertised as handmade because machines are used in the process of manufacturing the product. Singleton v. Fifth Generation, Inc., No. 15-0474 (N.D.N.Y., order entered January 12, 2016). The court rejected the company’s claim that its adherence to U.S. Alcohol and Tobacco Tax and Trade Bureau standards does not relieve it from liability for false advertising claims. Further, the court found that “Tito’s labels could plausibly mislead a reasonable consumer to believe that its vodka is made in a hands-on, small-batch process, when it is allegedly mass-produced in a highly-automated one.” Accordingly, the court allowed several claims to continue, but dismissed allegations of breach of express warranties and negligent misrepresentation. The decision echoes a November 2015 ruling from a California federal court, which also refused to find that the safe harbor provision excused Fifth Generation from liability. Hofmann v. Fifth…
A California federal court has allowed plaintiffs in a false advertising putative class action to dismiss their claims of fraud based on the “extra virgin” quality of Filippo Berio olive oil in favor of pursuing their allegations that the products are falsely labeled as “made in Italy.” Kumar v. Salov N. Am. Corp., No. 14-2411 (N.D. Cal., Oakland Div., order entered January 8, 2016). The plaintiff sought to dismiss the “extra virgin” portion of the claims after the discovery process revealed the olive oil was sold in both clear-glass bottles—which the plaintiff asserted could damage the quality of the oil because of the light allowed through the glass—and tinted-glass bottles. Additional details about the claims’ survival of a motion to dismiss appear in Issue 554 of this Update. In February 2015, Shook Partner Ann Havelka authored an article for Law360 examining the case, arguing that it is “an example of…
Responding to a novel food application submitted pursuant to Regulation (EC) No 258/97, the European Food Safety Authority’s (EFSA’s) Panel on Dietetic Products, Nutrition and Allergies (NDA) has verified the safety of cow’s milk treated with ultraviolet (UV) radiation to extend its shelf life. According to the NDA, the UV treatment increased the milk’s D3 concentrations but not in amounts likely to exceed the tolerable upper intake levels established by EFSA for children ages 1–10 years, adolescents and adults. “UV-treated milk is comparable to non-UV-treated milk, except for the vitamin D3 content,” states the NDA opinion. “No adverse effects regarding the contribution of milk to nutrient intakes are expected from the consumption of UV-treated milk in substitution of non-UV-treated milk. The Panel considers that the novel food is not nutritionally disadvantageous.” Issue 590
The U.K. Chief Medical Officers have advised consumers to drink less than 6 pints of beer per week under new guidelines for alcoholic beverage intake. Revising previous standards that set weekly limits at 21 units of alcohol for men and 14 units for women, the updated recommendations urge all consumers to imbibe fewer than 14 units weekly and warn that drinking even a moderate amount of beer, wine or spirits on a regular basis allegedly raises the risk of developing certain cancers. They also caution individuals to spread consumption over three or more days instead of engaging in “binge” drinking sessions. “Drinking any level of alcohol regularly carries a health risk for anyone, but if men and women limit their intake to no more than 14 units a week it keeps the risk of illness like cancer and liver disease low,” said Chief Medical Officer of England Sally Davies in…
Baltimore City Councilman Nick Mosby (D) has introduced legislation that would require health warnings for sugar-sweetened beverages (SSBs) in certain advertisements, menus, menu boards and point-of-sale signage. “The beverage industry specifically targets youth and communities of color with its marketing efforts, spending $395 million in marketing directed at youth and $28.6 million on marketing campaigns specifically targeting African-American and Hispanic youth,” according to Council Bill 16-0617. The draft ordinance further asserts, among other things, that some 25 percent of school-age Baltimore City children drink one or more soda daily. The proposed health notice would state: “Warning: Drinking beverages with added sugar contributes to tooth decay, obesity, and diabetes. This message is from the Baltimore City Health Department.” Violators of the ordinance would face misdemeanor fines as high as $1,000. The proposal has been referred to the Department of Health. See The Baltimore Sun, January 11, 2016. Issue 590
The U.S. Department of Agriculture’s Office of the Under Secretary for Food Safety and the U.S. Food and Drug Administration are convening a February 16, 2016, public meeting in College Park, Maryland, to discuss draft U.S. positions for consideration at the 48th Session of the Codex Committee on Food Additives (CCFA) in Xi’an, China, on March 14-18. Among other things, CCFA is responsible for establishing or endorsing permitted maximum levels of individual food additives, proposing risk assessments to the Joint FAO/WHO Expert Committee on Food Additives and recommending labeling standards for food additives. Agenda activities for the February 16 meeting will include discussion of a paper about the use of specific food additives in wine production; draft revisions to the food category 01.1 “Milk and dairy-based drinks”; and use levels for paprika extract. See Federal Register, January 11, 2016. Issue 590
The National Organic Program has issued final guidance for accredited certifying agents and certified and exempt organic operations to clarify federal regulations about substances used in the post-harvest washing, packing and storage of organic products. The document specifically addresses: “(1) What substances may be used for post-harvest handling; (2) the difference between ‘post-harvest handling of raw agricultural commodities’ and ‘further processing’; and (3) the regulatory requirements for facility pest management.” See Federal Register, January 15, 2016. Issue 590
In the law of product liability, lawyers representing manufacturers have underutilized the broad prohibition on “category liability.” Shook Public Policy Partners Victor Schwartz and Cary Silverman explain this doctrine and show how a Mississippi trial court judge applied it to dismiss design defect claims against respirator manufacturers in a Bloomberg BNA Product Safety & Liability Reporter article. Category liability arises when there is no true reasonable alternative design for a lawful product. For example, it is inappropriate to compare the safety of a convertible with an open roof design to a car with a solid roof design. Roller skates should not be compared to rollerblades. Bicycles and motorcycles should not be compared to tricycles and scooters. In the Mississippi litigation, plaintiffs presented elastomeric respirators (sealed to face with inhalation/exhalation valves, cleaned and reused) as a safer alternative to disposable respirators (known as N-95s). A perceptive trial court judge applied category…
An animal study examining the purported link between high sucrose intake and the development of mammary gland tumors has attributed the effect in part “to increased expression of 12-lipoxygenase (12-LOX) and its arachidonate metabolite 12-hydroxy-5Z,8Z,10E,14Z-eicosatetraenoic acid (12-HETE).” Yan Jiang, et al., “A Sucrose-Enriched Diet Promotes Tumorigenesis in Mammary Gland in Part through the 12-Lipoxygenase Pathway,” Cancer Research, January 2016. University of Texas MD Anderson Cancer Center researchers used several mouse models--“including a mouse mammary gland tumor model that carries a MMTV/unactivated neu transgene, a human triple-negative breast cancer cell (MDA-MB-231) orthotopic mouse model, and a breast cancer lung metastasis mouse model (injected with 4T1 mouse breast cancer cells)”--to identify a potential mechanism by which a sucrose-enriched diet contributes to tumor genesis and metastasis. The study reports that 50 to 58 percent of mice on a sucrose-enriched diet developed mammary tumors, compared to 30 percent on a starch-control diet. It also…
