A case-control study has reportedly identified a “significant” association between bovine leukemia virus (BLV) infection and human breast cancer. Gertrude Case Buehring, et al., “Exposure to Bovine Leukemia Virus Is Associated with Breast Cancer: A Case-Control Study,” PLoS One, September 2015. After analyzing breast tissue specimens obtained from 239 donors for the presence of BLV, University of California, Berkeley, researchers apparently detected BLV “in the mammary epithelium of 59% of women diagnosed with breast cancer versus 29% of those with no history of breast cancer.” They further suggest that “as many as 37% of breast cancer cases may be attributable to BLV exposure,” with an odds ratio “comparable to that of commonly cited reproductive, hormone, and lifestyle risk factors for non-hereditary (sporadic) breast cancer.” As explained in a concurrent press release, a 2014 study published in Emerging Infectious Diseases confirmed the presence of BLV in humans, though it is currently…
Posts By Shook, Hardy & Bacon L.L.P.
Weeks after the U.S. Food and Drug Administration (FDA) sent Hampton Creek Foods a letter warning that its Just Mayo is misbranded because it does not contain eggs, emails obtained through the Freedom of Information Act reportedly indicate that the American Egg Board (AEB) and a public relations firm made a concerted effort to remove Just Mayo from the market. The emails reportedly detail the actions the group undertook, including a complaint to FDA, an attempt to convince Whole Foods to stop selling Just Mayo, aid to Unilever in its litigation against Hampton Creek, and payments to food bloggers who post about how “real and sustainable foods, like eggs,” fit into their lifestyles. Details about Unilever’s lawsuit against Hampton Creek appear in Issue 549 of this Update. Public health attorney Michele Simon posted the emails on her blog, alleging that AEB likely broke laws during its attempt to quash Hampton…
Video publisher The Criterion Collection has filed a trademark dilution suit against Whole Foods and an alcohol supplier alleging that a line of wines introduced in June 2015 infringed on its name. The Criterion Collection v. Whole Foods Mkt., No. 15-7132 (S.D.N.Y., filed September 10, 2015). The Criterion Collection has licensed and published classic films with additional “value added” content since 1984, beginning with Citizen Kane. “To the consuming public, ‘The Criterion Collection’ has become, over time, broadly associated with technical excellence, artistic value and cultural importance,” the complaint asserts. In 2015, Whole Foods and Winery Exchange, Inc. began selling “Criterion Collection” wine purported to be hand-selected by the grocery chain’s master sommelier, Devon Broglie. The Criterion Collection alleges that this use infringes its trademark under the Lanham Act and New York law and seeks a permanent injunction and damages. Issue 578
Deep Ellum Brewing Co. has filed a lawsuit against the Texas Alcoholic Beverage Commission challenging the constitutionality of Texas Alcohol Beverage Code provisions forbidding brewers from selling their alcohol products on-site for off-premises consumption. Deep Ellum Brewing Co. v. Tex. Alcoholic Beverage Comm’n, No. 15-0821 (W.D. Tex., filed September 14, 2015). Dubbing the campaign “Operation Six Pack To Go,” the brewery argues that distilleries, wineries and brewpubs can sell their products in to-go packaging but breweries cannot, resulting in an unconstitutional distinction in the law. Texas alcohol codes distinguish between manufacturers, distributors and retailers, prohibiting overlapping ownership but creating exceptions for particular conditions, the complaint asserts. One such condition allows manufacturers to act as retailers in certain situations, such as at wineries and brewpubs. Deep Ellum Brewing alleges that because of this provision, it “has lost and continues to lose business (and resulting profits) because it cannot sell its product on-site…
A Florida federal court has granted preliminary approval of the settlement reached in a class action alleging that Kashi falsely advertised its products as “All Natural” despite containing genetically modified organisms (GMOs). Eggnatz v. The Kellogg Co., No. 12-21678 (S.D. Fla., order entered September 4, 2015). The court certified the class for settlement purposes and approved the $3.99 million settlement fund and terms of the agreement, which includes the removal of “All Natural” from Kashi products that contain the contested ingredients. The final approval hearing is set for January 2016. Additional details on the settlement appear in Issue 568 of this Update. Issue 578
A federal court in Puerto Rico has certified a question to the territory’s supreme court to determine whether a company can be held liable for injuries stemming from the consumption of a species of shrimp that can contain a naturally occurring toxin. Cabán v. JR Seafood Inc., No. 14-1507 (D.P.R., order entered September 11, 2015). The plaintiff became quadriplegic after eating shrimp tainted with saxitoxin at a restaurant supplied by JR Seafood. He sued JR Seafood for strict liability, arguing that the product was defective. The district court abstained from ruling, holding, “After careful review of the parties’ allegations and applicable law, the court finds that this case relies solely on an unsettled issue of Puerto Rico law, as to which this court cannot reasonably predict how the Puerto Rico Supreme Court would rule.” It then certified two questions: “Under the principles of product liability, is a supplier/seller strictly liable…
The U.K. Advertising Standards Authority (ASA) has upheld a complaint alleging that an online “instant-win” promotion organized by Kettle Foods Ltd. was misleading because it required participants to register before finding out if they had won a prize. According to ASA, the U.K. Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) states that “participants in instant-win promotions must get their winnings at once or must know immediately what they have won and how to claim without delay, cost or administrative barriers.” Kettle Foods reportedly advertised “instant win prizes” on its potato chip packages, which featured a unique code with instructions directing entrants to a website. Before viewing their potential winnings, consumers were asked to provide identifying information, including full name, postal code, telephone number, email address, date of birth, and a chosen password for subsequent visits. As required by law, the company also offered a “no purchase…
The New York City (NYC) Board of Health has reportedly amended Article 81 of the NYC Health Code to require food items containing more than 2,300 milligrams of sodium to be singled out on menus and menu boards with a salt-shaker icon and an accompanying warning statement. The initiative affects restaurant chains with more than 15 locations nationwide, and the mandated warning must state that the “sodium content of this item is higher than the total daily recommended limit (2,300 mg). “Many others recognize the important public health impact of excess sodium intake, and I am hopeful that others will follow suit,” Health Commissioner Mary Bassett, was quoted as saying. The warnings will take effect on December 1, 2015, and reportedly apply to about 10 percent of menu selections offered by chain restaurants covered under the amendment. Violators of the regulation will face $200 fines. See The New York Times…
The U.S. Food and Drug Administration has issued draft guidance for industry titled “A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods—Part II (Menu Labeling Requirements in Accordance with 21 CFR 101.11.” When finalized, the guidance is intended to assist chain establishments with 20 or more locations (e.g., grocery stores, quick service restaurants, pizza delivery outlets, convenience stores, movie theaters, fast food restaurants) comply with menu-labeling requirements for standard menu items, including self-service offerings. See Federal Register, September 16, 2015. Issue 578
A California federal court has dismissed a putative class action alleging that Jim Beam Brands and Beam Suntory Import mislabel Jim Beam® bourbon bottles because the label calls the product “handcrafted” despite its machine-based manufacturing process. Welk v. Beam Suntory Imp. Co., No. 15-0328 (S.D. Cal., order entered August 21, 2015). The plaintiff had alleged that a reasonable consumer would be fooled by the bourbon label because the production process for the “handmade” product requires “little to no human supervision, assistance or involvement.” Details about the complaint appear in Issue 556 of this Update. The court first denied the distillery’s motion to dismiss under California’s safe harbor doctrine, finding that although Jim Beam could prove the Alcohol and Tobacco Tax and Trade Bureau had approved the label, the evidence did not indicate whether the agency investigated and approved including decisions finding for Jim Beam and its sibling brand Maker’s Mark®,…
