A consumer has filed a putative class action in Louisiana federal court against several California wineries alleging that their products contain “dangerously high” levels of arsenic, echoing a similar lawsuit filed in California in March 2015. Crespo-Bithorn v. The Wine Grp. Inc., No. 15-1424 (M.D. La., filed April 20, 2015). The complaint alleges that the wineries “sell and distribute wine to consumers at inorganic arsenic levels significantly higher than what the State of California considers the maximum acceptable limit for safe daily exposure” and asserts that the advertising and marketing of each wine was deceptive because it failed to warn of the arsenic levels. The plaintiff seeks national and state class certification and damages for the Louisiana cause of action of redhibition as well as alleged violations of Louisiana consumer protection statutes and the Magnuson-Moss Warranty Act. Details about the March lawsuit appear in Issue 559 of this Update. …
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Saeilo Enterprises Inc., and Alphonse Capone Enterprises Inc., have reportedly reached a settlement in a lawsuit alleging trademark and trade dress infringement for a bottle of vodka branded as “Tommy Guns Vodka” and shaped like Saeilo’s Thompson submachine gun. Saeilo Enterprises, Inc. v. Alphonse Capone Enterprises, Inc., No. 13-2306 (N.D. Ill., notification of docket entry filed April 21, 2015). The gun manufacturer alleged in its complaint that the vodka company misappropriated the trade dress and trademark of the Thompson gun with the shape of the bottle and the name, and Saeilo sought an injunction, damages and attorney’s fees. A notice filed with the court indicates that the parties have reached a settlement and will file a stipulation to dismiss, but terms of the settlement were unavailable. Issue 562
A New Jersey federal court has granted Gerber’s motion to compel discovery of medical records in a consumer putative class action alleging that the company misrepresented its probiotic formula as capable of improving infant immune systems. In re Gerber Probiotic Sales Practices Litig., No. 12-835 (D.N.J., order entered April 10, 2015). Gerber requested medical records for the children who ingested the products, but the plaintiffs objected that the “overly broad” request violated their rights of privacy and that the records were subject to physician-patient privilege. The court agreed with Gerber, finding “a legitimate need for medical records as there is no other source that could test the actual effectiveness of the products that claim to produce immune system health. Proof in the form of scientific studies and expert testimony may not be sufficient,” the court said, so “actual facts or the lack thereof may be essential.” Further, the medical records…
The U.S. Supreme Court has heard arguments in a case brought by raisin farmers against the U.S. Department of Agriculture (USDA) alleging that a federal program requiring a portion of the yield to be set aside amounted to a taking of their property, thus requiring just compensation. Horne v. USDA, No. 14-275 (U.S., oral arguments heard April 22, 2015). According to news reports, the justices appeared to favor the raisin farmers’ arguments. “You come up with the truck, and you get the shovels, and you take their raisins—probably in the dark of the night,” Chief Justice John Roberts reportedly said. At another point in the proceedings, he called the program’s requirement “a classic, physical taking.” Justice Antonin Scalia reportedly called the program “ridiculous” and compared its structure to communism (“Central planning was thought to work very well in 1937. Russia tried it for a long time.”), and Justice Samuel Alito asked…
The European Food Safety Authority (EFSA) has announced a June 17, 2015, workshop in Brussels, Belgium, to discuss supplementary guidance for the allergenicity assessment of genetically modified organisms (GMOs). According to the agency, the supplementary guidance aims to reflect technological and scientific advances as well as assessment methodologies developed since EFSA finalized the current guidance in 2011. The Working Group of EFSA’s GMO Panel requests feedback from member states, international partners, academia, non-governmental organizations and industry on the following topics: (i) non-IgEmediated immune adverse reactions to foods; (ii) in vitro digestibility tests for allergenicity assessment; and (iii) endogenous allergenicity. The June workshop will feature the work of 90 experts with a focus on molecular allergology, protein chemistry, plant science, clinical allergy, gastroenterology, food chemistry, and risk assessment. See EFSA News Release, April 14, 2015. Issue 562
The European Commission (EC) is convening a meeting to “inform Member States, Members of the European Parliament, third country representatives and stakeholders about the ongoing impact assessment on criteria to identify endocrine disruptors and to provide a platform for further exchanges of views” on June 1, 2015, at the Centre Albert Burschette in Brussels, Belgium. Sessions at the day-long event will include discussions of (i) the impact assessment vis à vis the plant protection products regulation and biocide products regulation; (ii) establishing criteria for identifying endocrine disruptors and assessing that criteria in a regulatory context; and (iii) potential impacts on health, the environment, trade, agriculture, consumers, and the food and pesticide industries. The registration deadline is May 19. See EFSA News Release, April 23, 2015. Issue 562
The U.K. Advertising Standard Authority (ASA) has dismissed a complaint alleging that a message on Diageo Great Britain Ltd.’s Guinness® Twitter feed “implied that someone’s week would be improved by drinking alcohol.” Filed by Alcohol Concern, the complaint dubbed a tweet appearing on @GuinnessGB “irresponsible” for featuring a photograph of the iconic brewery’s gates with the caption, “a good week starts here.” Dismissing the challenge, ASA ultimately agreed with Diageo Great Britain that consumers would recognize the gates as belonging to St. James Brewery in Dublin and would not confuse the brewery with a bar or other social venue where alcohol was consumed. According to Diageo Great Britain, the followers of @GuinnessGB would also understand the tweet as part of a larger ad campaign highlighting individual workers at the brewery. “We also noted that the photo was tweeted on Monday,” states ASA. “In this context, we considered that the ad…
California EPA’s Office of Environmental Health Hazard Assessment has announced a June 16-17, 2015, workshop to gather stakeholders for discussions about emerging evidence of climate change, its drivers and impacts on water resources, agriculture, fish, wildlife, and the health and well-being of California residents. Information gathered at the event is expected to inform the 2017 edition of Cal/EPA’s Indicators of Climate Change in California report. See OEHHA Press Release, April 20, 2015. Issue 562
The U.S. Department of Agriculture’s Food Safety and Inspection Service has announced a June 17, 2015, public meeting in Washington, D.C. to provide information and receive comments about draft U.S. positions to be discussed during the 38th Session of the Codex Alimentarius Commission in Geneva, Switzerland, July 6-11. Agenda items at the June 17 meeting include (i) proposed amendments to the procedural manual; (ii) amendments to Codex standards and related texts; (iii) implementation status of the Commission’s five-year strategic plan; and (v) relations between the Commission and other international organizations. See Federal Register, April 22, 2015. Issue 562
The Center for Science in the Public Interest (CSPI) and other organizations have filed a regulatory comment challenging the approval process for substances generally recognized as safe (GRAS) for use in food products, arguing that the U.S. Food and Drug Administration (FDA) has weakened the GRAS standards to the point that they violate the Food Additives Amendment of 1958. According to the comment, “[T]he American public would likely find it both disturbing and surprising that thousands of chemicals added to food today are not approved or even reviewed by FDA. Instead, of the roughly 10,000 additives currently used in food, more than 3,000 have never been substantively reviewed by FDA. For an estimated 1,000 of these substances, safety decisions were made by the food industry without any notice at all to FDA.” The comment further alleges that the agency has weakened food-safety laws with its 1997 proposal to change the GRAS…
