Two consumers have filed a putative class action in California federal court alleging that Maker’s Mark® bourbon whisky is not “handmade,” as the alcohol brand advertises, but is instead manufactured using “mechanized and/or automated processes” with “little to no human supervision, assistance or involvement.” Nowrouzi v. Maker’s Mark Distillery, Inc., No. 14-2885 (S.D. Cal., filed December 5, 2014). Citing photos and a video tour of the distillery as evidence, the plaintiffs argue that because Maker’s Mark® uses machines to make its product, its “handmade” claim and premium pricing amount to misrepresentation and violations of California’s false advertising statute. They allege that they “purchased Maker’s Mark whisky under the false impression that the whisky was of superior quality by virtue of being ‘Handmade’ and thus worth an exponentially higher price as compared to other similar whiskies.” They seek class certification, an injunction requiring discontinuation of the “handmade” description, a corrective advertising…
Posts By Shook, Hardy & Bacon L.L.P.
A California federal court has denied certification to a putative class action alleging that Mott’s misleadingly labeled its apple juice as having “No Sugar Added” because the plaintiff failed to provide a feasible model for calculating damages. Rahman v. Mott’s LLP, No. 13-3482 (N.D. Cal., order entered December 3, 2014). The court further refused to certify a liability class, finding it would not materially advance resolution of the case. The court first assessed the proposed class definition. It found that the plaintiff and the proposed class met the requirements of numerosity, ascertainability, commonality, and adequacy; in addition, the court rejected the juice company’s argument that the plaintiff was atypical because he is a Type 2 diabetic who closely reads nutrition labels. The court then discussed whether the plaintiff established that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that…
A “hand-shake” agreement between the European Union’s Parliament and Council will reportedly end an ongoing dispute over member state control of internal food markets in relation to genetically modified organism (GMO) cultivation. European Commissioner for Health and Food Safety Vytenis Adriukaitis reportedly said, “The agreement, if confirmed, would meet member states’ consistent calls since 2009, to have a final say on whether or not GMOs can be cultivated on their territory, in order to better take into account their national context and, above all, the views of their citizens.” Under the proposal, each EU country would have the authority to prohibit or restrict GMO cultivation for reasons other than food safety, including those involving socioeconomic effects, environmental concerns and agricultural policy goals. Current law allows member states to petition the European Food Safety Authority to limit such cultivation, but they must present scientific evidence showing the product is not safe to…
According to a news source, the organizations that supported an Oregon ballot initiative that would have required foods made with genetically engineered (GE) ingredients to be labeled as such have ended efforts to challenge a vote that narrowly defeated the measure. The groups apparently lost an emergency lawsuit seeking to include the ballots of some 4,600 voters who were rejected because the signatures on the vote-by-mail return envelopes did not match those on file. A court determined that the state’s rules on matching signatures were neither unreasonable nor illegal. An automatic recount had been triggered because the ballot proposal was defeated by slightly more than 800 votes out of 1.5 million cast. Of the initial 13,000 ballots with signature problems, 8,600 responded and matched their signatures. The remaining 4,600 were rejected. See Associated Press, December 11, 2014. Issue 548
Ten consumer organizations, including the Center for Science in the Public Interest and the Rudd Center for Food Policy and Obesity, have filed a Request for Investigation with the Federal Trade Commission (FTC) alleging that Topps Co., maker of Ring Pops, violated the Children’s Online Privacy Protection Act (COPPA) by encouraging children younger than age 13 to post photos of themselves wearing the candy to social media. Topps apparently introduced the campaign, #RockThatRock, as a collaboration with “tween band” R5 to feature photos of Ring Pop wearers in the band’s music video. Consumers could enter the contest by posting a photo to social media and appending the name of the campaign. The consumer groups allege that Topps aimed the contest at youth through its child-focused website, Candymania, and that the contest violated COPPA rules by collecting personal information—which, by statutory definition, includes photographs—from a child without giving notice and obtaining…
The Food and Drug Administration (FDA) is requesting (i) nominations for a non-voting industry representative to serve on the Food Advisory Committee and (ii) statements from organizations interested in participating in the selection process for the non-voting committee member. The Food Advisory Committee evaluates data and makes recommendations on such matters as food ingredient safety; food and cosmetic labeling; nutritional issues; and exposure limits for food contaminants. Organizations that want to participate in the process should express their interest in writing by January 7, 2015. Nomination materials must be received by the same date. See Federal Register, December 8, 2014. Issue 548
The U.S. Food and Drug Administration (FDA) has updated its online bisphenol A (BPA) information to reaffirm its conclusion that the substance is safe for approved food-packaging uses. According to the revised statement, agency experts in toxicology, analytical chemistry, endocrinology, epidemiology, and other fields completed “a four-year review of more than 300 scientific studies” without finding any information that would “prompt a revision of FDA’s safety assessment of BPA in food packaging at this time.” “Based on FDA’s ongoing safety review of scientific evidence, the available information continues to support the safety of BPA for the currently approved uses in food containers and packaging,” said the agency. “FDA will also continue to consult with other expert agencies in the federal government, including the National Institutes of Health (and the National Toxicology Program), the Environmental Protection Agency, the Consumer Product Safety Commission, and the Centers for Disease Control and Prevention.” See…
A study led by University of California, Davis, toxicologist Michael Denison and CertiChem, Inc. founder George Bittner has allegedly found that some hard, clear thermoplastic resins made without bisphenol A (BPA) still release chemicals with estrogenic activity (EA). George Bittner, et al., “Chemicals having estrogenic activity can be released from some bisphenol a-free, hard and clear, thermoplastic resins,” Environmental Health, December 2014. According to the study, which used in vitro assays “to quantify the EA of chemicals leached into ethanol or water/saline extracts of fourteen unstressed or stressed (autoclaving, microwaving, UV radiation) thermoplastic resins,” four types of resin “leached chemicals having significant levels of EA.” In particular, the authors noted that UV radiation increased the probability that certain thermoplastic resins would leach chemicals with detectable EA levels. However, the study stopped short of assigning any human health effects to the consumption of these chemicals, as no scientists or other entities “have…
Citing the role of excess dietary sodium in the development of cardiovascular disease and industry resistance to federal action mandating reductions, the Center for Science in the Public Interest (CSPI) this week issued a report claiming that the top 25 U.S. restaurant chains have failed to lower the amount of sodium in nearly 3,000 menu items between 2012 and 2014. “As a whole, the nation’s leading restaurants are failing miserably when it comes to their patrons’ heart health,” CSPI Executive Director Michael Jacobson said. “And, unfortunately, the U.S. Food and Drug Administration has failed for decades to tell the food industry to lower sodium and by how much.” The public health watchdog reportedly analyzed restaurant sodium data from Menustat.org, a New York City health department database providing nutritional information about fare served at the nation’s largest restaurant chains. See CSPI News Release, December 2, 2014. Issue 547
The Pew Charitable Trusts Campaign on Human Health and Industrial Farming has published an issue brief concluding that gaps in the U.S. Food and Drug Administration’s (FDA’s) guidance for antibiotic use in livestock have allowed “some injudicious practices to persist.” Released in December 2013, FDA Guidance for Industry #213 aims to combat antibiotic-resistant bacteria by restricting the use of antibiotics in food animals for growth promotion. To this end, the agency asked drug companies to remove “feed efficiency” and “weight gain” indications from product labels and required veterinary oversight when these drugs are added to feed or water. After reviewing all 287 antibiotics affected by Guidance #213, Pew researchers reported that approximately one-quarter of these drugs “can be used in at least one species of livestock (chickens, turkeys, pigs or cattle) for disease prevention at levels that are fully within the range of growth promotion dosages and with no limit…
