Finding a lack of standing, a California federal court has dismissed the named plaintiffs of a putative class action against Safeway alleging that the company should have notified customers who purchased dangerous products through information gathered from its loyalty-card program. Hensley-Maclean v. Safeway, Inc., No. 11-1230 (N.D. Cal., order entered June 29, 2015). Details about the court’s refusal to dismiss the case before discovery appear in Issue 398 of this Update. After proceeding through discovery, Safeway apparently learned that none of the plaintiffs had purchased any products subject to Class I recalls, which occur “when there is a reasonable probability that use of the product will cause serious, adverse health consequences or death.” The two named plaintiffs had argued that Safeway should have notified them about recalls of Nutter Butter® Sandwich Cookies and Lucerne® eggs, but later examination revealed that their purchases were not part of any Class I recalls.…
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A Hawaii federal court has ruled that a Maui ban on genetically modified organisms (GMOs) is preempted by the Plant Protection Act and therefore invalid. Robert Ito Farm, Inc. v. Cty. of Maui, No. 14-0582 (D. Haw., order entered June 30, 2015). The decision begins with an introduction clarifying that the court recognizes the importance of the questions of whether GMOs pose risks, noting, “This order is not an attempt by this court to pass judgment on any benefit or detriment posted by [genetic engineering (GE)] activities or GMOs.” The Maui prohibition on GMO cultivation or propagation passed in November 2014 and supporters of the initiative filed a lawsuit for a declaratory judgment shortly thereafter. Detractors then filed a lawsuit the following day seeking to invalidate the ban. After disposing with preliminary motions filed by a supporter organization, Shaka Movement, the court turned to the issue of preemption. The federal…
Diageo Great Britain Ltd. reportedly plans to appeal the U.K. Advertising Standards Authority’s (ASA’s) decision to ban a Smirnoff ® advertisement for allegedly violating the marketing rules for social responsibility in alcohol marketing. Upholding its own complaint, which claimed that the ad in question linked social success to alcohol consumption, ASA found that “the ad’s presentation implied that before the visitor asked for an alcoholic drink, the bar was cold and uninviting and that once his drink had been ordered, the bar changed and became livelier and more fun.” Diageo disputed this interpretation, arguing that the TV spot showed the bar “tilting” to filter out the elements that gave it an unwelcoming atmosphere. According to the ruling’s summary of Diageo’s response, “The tilt acted as a physical division within the ad and where the pretentious items in the first scene were filtered out and the bar now had a warm…
The U.S. Food and Drug Administration (FDA) has published modifications to the 2013 Food Code based on recommendations made by industry, regulators and other stakeholders during the 2014 Biennial Meeting of the Conference for Food Protection. The Food Code and its Supplement offer the federal agency’s best advice for minimizing the risk of foodborne illness in retail and foodservice venues. Changes to the 2013 iteration of the Code include: (i) clarification of what information should be included in a Hazard Analysis and Critical Control Point Plan required by a regulatory authority; (ii) clarification of the difference between Typhoid Fever and non-typhoidal Salmonellosis when reporting illness and the exclusion and restriction of sick food employees; and (iii) expansion of the duties of the “Person in Charge” to include oversight of the routine monitoring of food temperatures during hot and cold holding. FDA plans to issue its next complete revision of the…
Citing stakeholder concerns over insufficient time to achieve appropriate implementation, the U.S. Food and Drug Administration (FDA) has extended by one year the compliance date for its controversial menu-labeling rule from December 1, 2015, until December 1, 2016. The new requirements apply to restaurants and similar retail food establishments with more than 20 locations, as well as food facilities in movie theaters, amusement parks and other entertainment venues. According to a statement from FDA Deputy Commissioner Michael Taylor, the agency will continue its ongoing discussions with covered establishments and plans to release draft guidance in August 2015 that answers frequently asked questions about complying with the rule. See FDA Statement, July 9, 2015. Issue 571
A consumer has filed a putative class action alleging that Capri Sun®, a product of Kraft Foods Group, is misleadingly represented as “natural” because it contains citric acid and “natural flavor.” Osborne v. Kraft Foods Grp., Inc., No. 15-2653 (N.D. Cal., filed June 12, 2015). The complaint asserts that citric acid is created synthetically through the fermentation of glucose, while “natural flavor” is made of “unnatural, synthetic, artificial and/or genetically modified ingredients,” so neither ingredient should be part of a “natural”-labeled product. Kraft charged a premium for Capri Sun® based on that label, the plaintiff argues, and deceived consumers into relying upon that label misrepresentation when purchasing. She seeks class certification, an injunction, damages and attorney’s fees for alleged negligent misrepresentation and violations of California’s consumer-protection statutes. Issue 570
A California federal court has certified a class of consumers challenging the “natural” label on Kraft’s fat-free cheddar cheese product but limited the class only to consumers who relied on that labeling when purchasing the product. Morales v. Kraft Foods Grp., Inc., No. 14-4387 (C.D. Cal., order entered June 23, 2015). The complaint had asserted that artificial coloring in the product precluded Kraft from labeling the cheese as “natural.” The court found that the proposed class met the numerosity, commonality, typicality and adequacy of representation standards, then focused on whether the common issues predominate over any individual issues. Kraft argued that the plaintiffs could not show that every member of the proposed class relied upon the “natural” representation because the term “natural” may mean different things to different people. The court disagreed but noted that Kraft could make that argument later in the legal process. Kraft also challenged the ascertainability of…
Anheuser-Busch has settled a class action alleging that the company misrepresented Beck’s® beer as brewed in Germany after a 2012 move to a St. Louis brewing facility. Marty v. Anheuser-Busch Cos., LLC, No. 13-23656 (S.D. Fla., preliminary approval entered June 23, 2015). The uncapped settlement will provide payouts to U.S. purchasers of bottles or packages of Beck’s® since May 2011, with a $50 limit for households with proofs of purchase and $12 limit for those without. Anheuser-Busch will include the phrase “Brewed in USA” or “Product of USA” on the bottles, boxes and website for at least five years. Plaintiffs’ attorneys will receive $3.5 million. Details about a similar lawsuit Anheuser-Busch settled about the origin of Kirin® beer in January 2015 appear in Issue 550 of this Update. Issue 570
France’s administrative supreme court, Conseil d’Etat, has ruled that PlasticsEurope’s challenge to the country’s ban on bisphenol A (BPA) in food-contact materials can be heard in its Constitutional Council because the legal question presented is new. The plastics group argued that the opinion from the French Agency for Food, Environment and Occupational Health and Safety that the 2012 prohibition cited as justification was inadequate because it was a “danger study” rather than an “evaluation of risks.” The Constitutional Council now has three months to rule on the case. See Bloomberg BNA, June 19, 2015. Issue 570
The U.S. Supreme Court has ruled that a provision in the Agricultural Marketing Agreement Act of 1937, a U.S. Department of Agriculture program that regulates U.S. production and sales of raisins, amounts to a constitutional taking and requires just compensation to plaintiffs and other raisin farmers. Horne v. USDA, No. 14-275 (U.S., decided June 22, 2015). The decision focused on whether a taking of personal property (here, the raisins) fell under the Fifth Amendment of the U.S. Constitution, which requires just compensation and has historically applied to real property such as land. The majority opinion, delivered by Chief Justice John Roberts, began by detailing the program, which required raisin farmers to turn over a portion of their crop yields each year to avoid oversaturating the market and causing a drop in raisin prices. The government then used those yields in social programs like school lunches or sold them overseas. The…
