A Florida federal court has given final approval to the settlement agreement in a lawsuit alleging Anheuser-Busch falsely advertised its Beck's® beer as imported even though it was manufactured in St. Louis, Mo. Marty v. Anheuser-Busch Cos., LLC, No. 13-23656 (S.D. Fla., approval entered October 20, 2015). Under the agreement, Anheuser-Busch will offer refunds in several tiers, including $0.10 per individual bottle, $0.50 per six-pack and $1.75 per 20-pack, with a cap of $50 per household for those consumers with receipts and $12 for those without. The company will also add language to Beck's® packaging indicating the beer is a "Product of USA." Additional details about the settlement appear in Issue 570 of this Update. Issue 582
Posts By Shook, Hardy & Bacon L.L.P.
The European Food Safety Authority’s (EFSA’s) Panel on Dietetic Products, Nutrition and Allergies (NDA Panel) has issued two scientific opinions deriving dietary reference values (DRVs) for iron and copper. After estimating whole-body iron losses and absorption values for men and women, the panel set the population reference intake (PRI) at 11 mg/ day for men and postmenopausal women; infants ages 7 to 11 months; children ages 7 to 11 years; and boys ages 12 to 17 years. It also established PRIs of 16 mg/day for premenopausal women; 13 mg/day for girls ages 12 to 17 years; and 7 mg/day in children ages 1 to 6 years. Due to the absence of biomarkers indicating copper status as well as limited data, the NDA Panel only defined adequate intakes (AIs) “based on mean observed intakes in several European Union (EU) countries, given that there is no evidence of overt copper deficiency in…
Public Health England (PHE) has issued an October 2015 evidence review urging the U.K. government to reduce sugar consumption. Building on the Scientific Advisory Committee on Nutrition’s (SACN’s) conclusion that free sugar intake should constitute less than 5 percent of dietary energy, the report discusses food and beverage marketing, sugar accessibility and product composition, educational efforts, and local initiatives. PHE also addresses taxation schemes, noting that price increases “can influence purchasing of sugar-sweetened drinks and other high sugar products at least in the short-term.” The findings target retail promotions and marketing to children as two key aspects of the food environment that allegedly promote sugar consumption. Among other things, the report specifically recommends (i) restricting the number and type of price promotions across all retail outlets; (ii) reducing food and beverage marketing to children as well as adults; (iii) defining high-sugar foods according to Ofcom’s nutrient profiling model; (iv) instituting…
The Centers for Disease Control and Prevention (CDC) has launched a newly interactive iteration of its Foodborne Outbreak Online Database Tool. The resource allows users to search data by year, state, location of food preparation, food and ingredient, and implicated germ. The information captured in the database comes from CDC’s Foodborne Disease Outbreak Surveillance System, which tracks data on outbreaks caused by enteric bacterial, viral, parasitic, and chemical agents reported by local, state and territorial health agencies. CDC estimates that one in six Americans becomes sick annually from consuming contaminated foods and beverages. See CDC News Release, October 20, 2015. Issue 582
A University of Washington study has allegedly found that many red wines produced in California, Washington, New York and Oregon contain arsenic levels exceeding the U.S. Environmental Protection Agency (EPA’s) limit for drinking water of 10 parts per billion (ppb). Denise Wilson, “Arsenic Content in American Wine,” Journal of Environmental Health, October 2015. Authored by an electrical engineering professor, the study purportedly finds that all samples taken from 65 representative wines contained inorganic arsenic, with an average arsenic level of 23.3 ppb. In addition, 58 percent of the samples contained lead and 5 percent exceeded EPA’s lead limits for drinking water. A companion study notes that adults who consume high quantities of rice and infants who consume organic brown rice syrup could also be ingesting arsenic at levels that exceed maximum recommended amounts. The research ultimately raises concerns about dietary exposure to arsenic from multiple sources, urging wineries to test…
The Center for Science in the Public Interest (CSPI) has filed a lawsuit against the U.S. Food and Drug Administration (FDA) to compel the agency to act on the advocacy group’s 2005 citizen petition requesting regulations about the use of salt as a food additive. Ctr. for Sci. in Pub. Interest v. FDA, No. 15-1651 (D.D.C., filed October 8, 2015). The petition called for FDA to revoke salt’s status as generally recognized as safe, amend prior approvals of salt use, require food manufacturers to reduce sodium levels in processed foods, and mandate labeling messages about the health effects of salt in foods containing more than half an ounce of the substance. The complaint alleges that while “[n]early all Americans consume more sodium than is safe,” “[c]onsumers can exert relatively little control over their sodium intake by adjusting discretionary use of salt” because such use amounts to only 5 to 10…
The European Union’s General Court has rejected an appeal to register “Halloumi” and its Greek alphabet equivalent as Community Trade Marks, deeming the terms descriptive of the cheese product. Republic of Cyprus v. Office for Harmonisation in the Internal Mkt., Nos. T-292/14 and T-293/14 (Gen. Ct., order entered October 7, 2015). The application would have granted trademark protection for “Halloumi” within the European Union. Halloumi is set to receive Protected Designation of Origin status as a cheese produced on the island of Cyprus after the European Commission published the application to register the name in July 2015. As a trademark, however, the term is merely descriptive of the cheese product, the court found. “[T]he applicant acknowledges that the marks applied for have always been perceived by Cypriot consumers and by consumers across the European Union as referring to a particular type of cheese exported from Cyprus, made in a certain…
A California federal court has dismissed without leave to amend several claims in a lawsuit alleging that Whole Foods Market fraudulently and misleadingly labeled its 365 Everyday Value ketchup, oatmeal and chicken broth as containing “evaporated cane juice” (ECJ) rather than “sugar.” Pratt v. Whole Food Mkt. Cal., Inc., No. 12-5652 (N.D. Cal., San Jose Div., order entered September 30, 2015). The plaintiff alleged that because Whole Foods failed to use the most common name for the ingredient—as mandated by U.S. Food and Drug Administration rules—the products were misbranded and “cannot be legally sold, possessed, have no economic value, and are legally worthless.” The court first dismissed strict liability allegations, finding that the plaintiff sought to impose a requirement inconsistent with federal law. Turning to the plausibility of the plaintiff’s allegations, the court found his reliance claims contradictory because one claim required him to know nothing about ECJ while the…
A California federal court has granted Foster Farms’ request for declaratory judgment finding that Lloyd’s of London must cover $14 million in costs related to a Salmonella outbreak linked to Foster Farms’ chicken processing facilities. Foster Poultry Farms Inc. v. Certain Underwriters at Lloyd’s London, No. 14-0446 (E.D. Cal., order entered October 9, 2015). Foster Farms’ policy with the insurer included coverage for “Accidental Contamination,” requiring the company to show (i) “an error in the production of its chicken product” and (ii) that consumption of the product “‘would ‘lead to’ bodily injury.” Lloyd’s challenged Foster Farms’ showing of the latter requirement, arguing the destroyed products were not actually contaminated with Salmonella. The court concluded the company had shown the products were contaminated because at the time the U.S. Department of Agriculture’s Food and Safety Inspection Service issued its Notice of Suspension, Foster Farms’ products had tested positive for Salmonella for…
The Ninth Circuit Court of Appeals has rejected Stanislaus Food Products Co.’s attempt to revive a lawsuit alleging that several major manufacturers of tin cans conspired to cede the market to a single company, USS-POSCO Industries (UPI). Stanislaus Food Prods. Co. v. USS-POSCO Industries, No. 13-15475 (9th Cir., order entered October 13, 2015). “This appeal, which centers on tin mill products used to package food, teaches that there’s no substitute for concrete evidence,” the decision begins. Stanislaus, a tomato cannery, alleged that UPI, a joint venture of U.S. Steel and POSCO America Steel Corp., conspired with other tin mill producers to allocate the tin can market to UPI and fix the prices of tin mill products. Stanislaus cited the fact that POSCO never entered the western U.S. market as evidence of conspiracy; the court considered the practicality of the allegations and found them lacking. “A scheme like Stanislaus alleges would not…
