A California federal court has held that the state law prohibiting the sale of foie gras resulting from the forcefeeding of ducks or geese is preempted by a federal law regulating the distribution and sale of poultry products. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12-5735 (C.D. Cal., order entered January 7, 2015). The Ninth Circuit previously affirmed a lower court’s denial of a temporary injunction sought by the plaintiffs based on a failure to show a likelihood of success on the merits of their vagueness or commerce clause challenges. Additional information about the Ninth Circuit ruling appears in Issue 497 of this Update, and details about the U.S. Supreme Court’s denial of certiorari to review that decision appear in Issue 542. The court first found that the plaintiffs had standing to challenge the ban despite that defendant Kamala Harris, in her capacity as state attorney…
Posts By Shook, Hardy & Bacon L.L.P.
The U.S. Department of Agriculture’s National Organic Program (NOP) has published draft guidance clarifying the agency’s interpretation of regulations that require organic operations to “maintain or improve the natural resources of the operation, including soil and water quality.” Intended for accredited certifying agents and certified operations, the guidance provides examples of production practices that support the principles of natural resource and biodiversity conservation. It also describes (i) “the certified organic operator’s responsibility to select, carry out, and record production practices that ‘maintain or improve the natural resources of the operation’”; (ii) “the accredited certifying agent’s responsibility to verify operator compliance with this requirement”; and (ii) “how domestic organic operations that participate in a USDA Natural Resources Conservation Service (NRCS) program and the NOP can reduce their paperwork burdens.” The agency will accept comments on the draft guidance until February 27, 2015. See Federal Register, December 29, 2014. Issue 550
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) will host a January 13-14, 2015, public meeting of the National Advisory Committee on Meat and Poultry Inspection (NACMPI) at the Patriot Plaza III building in Washington, D.C. Topics of discussion at the meeting will include (i) FSIS’s identification and management of chemical hazards within the National Residue Program (i.e., contaminants in meat, poultry and egg products); and (ii) the Economic Research Service’s Cost Calculation Model, which provides federal agencies with peer-reviewed estimates of the costs of foodborne illness that can be used to evaluate the effects of federal regulation and inform policy considerations. See Federal Register, December 24, 2014. Issue 550
Responding to objections submitted by the Natural Resources Defense Council (NRDC), the U.S. Food and Drug Administration (FDA) has confirmed its decision to allow the use of advantame as a non-nutritive sweetener and flavor enhancer in foods intended for human consumption. FDA apparently received 12 responses to its May 21, 2014, final rule on advantame, but only NRDC’s submission met the requirements for agency consideration. In particular, NRDC cited five animal studies allegedly showing that aspartame affects the hypothalamus, arguing that aspartame and advantame are “structurally related.” But FDA disagreed with this reasoning, noting that although advantame is structurally related to aspartame, the two substances are “chemically different and metabolized differently in the human body.” As a result, the agency did not consider the health effects of aspartame when reviewing the toxicological data for advantame. As the agency concluded, “NRDC’s objection to the advantame final rule does not provide any…
Shook, Hardy & Bacon Agribusiness & Food Safety Partner Jim Muehlberger and Associate Jara Settles discuss the modern consumer protection landscape in a January 2, 2015, expert analysis published in Law360. Noting that food lawsuits “tend to garner significant notoriety,” the authors focus on recent litigation against Whole Foods Market Inc. alleging that the health-food purveyor “benefited from misleading labeling claims on almond milk,” which a third-party certified as free of ingredients made with genetically modified organisms (GMOs). Richard v. Whole Foods Mkt. Cal. Inc., No. BC563304 (Cal. Super. Ct., Los Angeles Cty., filed Nov. 7, 2014). “In a long line of consumer protection putative class actions aimed at food companies, Richard is somewhat unique in targeting a retailer,” explain Muehlberger and Settles. “In most situations, plaintiffs have targeted the manufacturers of food and beverage products they deem to be improperly labeled… As a retailer, Whole Foods likely had no hand in…
Shook, Hardy & Bacon Agribusiness & Food Safety Co-Chair Madeleine McDonough was quoted in two January 2, 2015, Law360 articles about various legal, legislative and regulatory issues expected to affect food and beverage manufacturers in the new year. Given the September 2014 convictions of former Peanut Corp. of America owner Stewart Parnell and two other company executives on criminal charges stemming from a 2008-2009 Salmonella outbreak that sickened hundreds of people nationwide and was linked to nine deaths, McDonough speculated that similar misdemeanor prosecutions under the Park Doctrine could be on the rise. “People are really watching all of the fallout from the Parnell situation and trying to keep that in mind in making sure they have appropriate procedures internally,” McDonough told Law360. Under the Park Doctrine, food and drug company executives can be criminally prosecuted for product safety violations without any proof that the executives had any specific knowledge or…
A University of California, San Diego, study has reportedly claimed that the brains of obese children “literally light up differently when tasting sugar,” according to a December 11, 2014, press release. Kerri Boutelle, et al., “Increased brain response to appetitive tastes in the insula and amygdala in obese compared to healthy weight children when sated,” International Journal of Obesity, December 2014. Researchers apparently scanned the brains of 10 obese and 13 healthy weight children “while they tasted one-fifth of a teaspoon of water mixed with sucrose (table sugar).” The results evidently showed that the obese children “had heightened activity in the insular cortex and amygdala, regions of the brain involved in perception, emotion, awareness, taste, motivation and reward.” As the lead author explained, “The take-home message is that obese children, compared to healthy weight children, have enhanced responses in their brain to sugar. That we can detect these differences in…
A consumer has filed a putative class action in Florida federal court alleging that LesserEvil LLC falsely advertises its Chia Crisps as containing “a significant amount of chia seeds, when, in actuality, the Product is primarily composed of black beans, a less expensive ingredient.” Crane v. LesserEvil LLC, No. 14-62854 (S.D. Fla., filed December 16, 2014). The plaintiff asserts that LesserEvil attempted to capitalize on increasing consumer demand for antioxidant-rich chia seeds by creating a black-bean product with an insignificant amount of the seeds and advertising it as a chia-seed product. She alleges unjust enrichment and a violation of the Florida Deceptive and Unfair Trade Practices Act; she seeks class certification, compensatory damages, restitution, an injunction, and attorney’s fees. Issue 549
Three consumers have filed three separate putative class actions against Whole Foods Inc., Wegmans Food Markets Inc. and Acme Markets Inc. in New Jersey state court alleging that the grocery chains falsely represent their bread and bakery products as freshly made in-store. Mladenov v. Whole Foods, docket number unavailable (Super. Ct. N.J., Camden Cty., filed December 16, 2014); Mladenov v. Wegmans Foods Mkts., Inc., docket number unavailable (Super. Ct. N.J., Camden Cty., filed December 16, 2014); Mao v. Acme Mkts., Inc., docket number unavailable (Super. Ct. N.J., Camden Cty., filed December 16, 2014). The complaints allege violations of the New Jersey Consumer Fraud Act based on advertisements indicating that the bread and bakery products sold by the three companies were made in-store daily despite being “frozen, delivered to its stores, and then re-baked or partially baked in store,” according to the complaint against Acme. Each plaintiff seeks class certification, injunctive…
Several consumer and environmental groups, including the Center for Food Safety and Center for Environmental Health, have filed a lawsuit against the U.S. Environmental Protection Agency (EPA) seeking declaratory and injunctive relief for EPA’s alleged failure to respond to the groups’ 2008 petition calling for regulation of consumer products containing nano-sized versions of silver. Ctr. for Food Safety v. EPA, No. 14-2131 (D.D.C., filed December 16, 2014). According to the complaint, the 2008 petition requested that EPA classify nano-silver products as pesticides and provided EPA with a legal, policy and scientific blueprint for necessary action. EPA opened a comment period on the matter later that year but allegedly failed to take any further action. The petition also included an index of products that contained nano-silver, including food storage containers, food/produce cleaners, cutlery, cutting boards, and ingestible “health” drink supplements. The groups assert that nanomaterials “create unique human health and environmental risks,…
