A putative class action alleging that Conopco Inc., a subsidiary of Unilever United States, mislabeled Breyers ice cream as “all natural” has been voluntarily dismissed with prejudice. Jefferson v. Conopco, No. L-7025-14 (Super. Ct. N.J., Bergen Cty., stipulation of voluntary dismissal filed December 1, 2014). The plaintiff alleged that Breyers’ use of cocoa processed with alkali (Dutch process cocoa) contains the artificial ingredient potassium carbonate, which he argued should preclude the company from labeling its products as natural. The brief stipulation indicates that each party will pay its own attorney’s fees and costs. Additional information about the lawsuit appears in Issue 531 of this Update. Issue 547
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After a California federal court certified the class for liability but not for damages, the parties to a class action alleging that Jamba Juice mislabeled its smoothie kits as “all natural” despite containing synthetic ingredients like gelatin and xanthan gum have reached a settlement. Lilly v. Jamba Juice Co., No. 13-2998 (U.S. Dist. Ct., N.D. Cal., plaintiffs’ motion for settlement approval filed December 1, 2014). Under the proposed settlement agreement, Jamba Juice will remove “all natural” from its smoothie kit labeling and advertising by March 2015. The agreement will remain in force until the smoothie kits no longer contain the allegedly unnatural ingredients or the U.S. Food and Drug Administration classifies the ingredients as natural. The plaintiffs’ attorneys will also receive $425,000 in costs and fees. Additional information about the class certification appears in Issue 539 of this Update. Issue 547
After granting a motion for summary judgment in favor of Kangadis Food Inc.’s (KFI’s) owners, a New York federal court has issued an order further explaining its decision to dismiss the owners from a false-labeling class action. Ebin v. Kangadis Family Mgmt. LLC, No. 14-1324 (S.D.N.Y., order entered December 1, 2014). Additional information about the initial dismissal appears in Issue 543 of this Update. The court held that the plaintiffs “totally failed” to properly argue that the court should pierce the corporate veil and hold the owners liable for KFI’s actions. To satisfy the second prong of the piercing-the-veil test, the plaintiffs had to show that the owners, “through their domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice” against the plaintiffs. The court found that rather than providing an argument satisfying the second prong, the plaintiffs merely provided a “wholly conclusory statement”…
A federal court has granted summary judgment for the U.S. Food and Drug Administration (FDA) in a lawsuit brought by the Center for Science in the Public Interest (CSPI) and Mercury Policy Project (MPP) alleging that the agency has egregiously delayed a response to the organizations’ 2011 petition urging FDA to require the labeling of mercury levels in seafood. CSPI v. FDA, No. 14-0375 (D.D.C., order entered November 21, 2014). Additional information about the complaint appears in Issue 517 of this Update. Assessing precedent, the court noted six considerations relevant in evaluating agency delay and found that three were in question here. CSPI and MPP argued that FDA’s delay was unreasonable because statutorily, the agency has six months to approve, deny or tentatively respond to citizen petitions; while FDA technically complied with this regulation, they argued, the deadline “provides a framework within which to gauge FDA’s delay in issuing a…
The European Food Safety Authority (EFSA) has launched a risk assessment in response to the European Commission’s urgent request for scientific advice on the H5N8 avian influenza A virus detected in Germany, the Netherlands and the United Kingdom. Focusing on the role of wild birds as vectors, EFSA plans to release a December 2014 report that will provide risk managers “with independent scientific advice and assistance on animal health and welfare related to avian influenza and any possible food safety issues.” See EFSA News Release, November 26, 2014. In a related development, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service has amended an interim rule restricting the importation of live birds and poultry, hatching eggs and poultry products “from regions where any subtype of highly pathogenic avian influenza (HPAI) is considered to exist.” Effective December 1, 2014, the final rule now permits the importation of HPAI-resistant species, including pigeons…
The U.S. Department of Health and Human Services (HHS) and Department of Agriculture (USDA) have scheduled a meeting of the 14 member committee charged with developing the federal government’s “2015 Dietary Guidelines for Americans” for December 15, 2014, from 8 a.m. to 5:30 p.m. EST. The meeting is accessible to the public by webcast only and registration is required to view the proceedings. Aimed at promoting consumption of foods and beverages that assist in maintaining a healthy weight and preventing disease, the guidelines were first issued in 1980, are revised every five years, and provide the basis for federal food and nutrition policy and education efforts. The next iteration of the guidelines will be published during fall 2015. Information about the December 15 meeting agenda, webcast registration and the committee’s requests for written comments may be found here. See Federal Register, November 26, 2014. Issue 547
The U.S. Food and Drug Administration (FDA) has finalized two rules under the 2010 Patient Protection and Affordable Care Act that require chain restaurants and vending machine operators to disclose calorie information on menus or at the point of purchase. Generating more than 1,100 public comments, the federal rules aim to standardize labeling requirements “to provide consumers with more nutritional information about the foods they eat outside of the home.” Effective December 1, 2015, the menu-labeling final rule applies 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 FDA, which narrowed the scope of the rule to focus on restaurant-style food, the new labeling provisions cover standard menu items, certain alcohol beverages and multi-serving dishes labeled on a per-serving basis, but exempt “condiments, daily specials, temporary menu items, and food that…
The United States has appealed the World Trade Organization’s (WTO’s) ruling in favor of Canada and Mexico in a dispute over U.S. country-of-origin labeling (COOL) regulations requiring pork and beef products originating outside the United States to carry labels specifying their sources. The appeal notification circulated to WTO members indicated that the United States has challenged several of the panel’s findings, including that the detrimental impact does not stem exclusively from legitimate regulatory distinctions because “the amended COOL measure entails an increased recordkeeping burden and increased segregation,” “the current labels provided by the amended COOL measure have a potential for label inaccuracy,” and “the amended COOL measure continues to exempt a large proportion of muscle cuts.” Appeals are heard by three members of a permanent seven-member appellate body unaffiliated with any government, and the appellate body generally has three months to conclude its report. Additional information on the WTO panel’s…
A new study has purportedly found that “urinary phthalate metabolites were associated with increased oxidative stress biomarkers” in a population of 482 pregnant women. Kelly Ferguson, et al., “Urinary Phthalate Metabolites and Biomarkers of Oxidative Stress in Pregnant Women: A Repeated Measures Analysis,” Environmental Health Perspectives, November 2014. In addition to measuring nine phthalate metabolites at 10, 18, 26, and 35 weeks gestation as well as delivery, researchers with the University of Michigan and Harvard Medical School analyzed urinary levels of 8-hydroxydeoxyguanosine (8- OHdG) and 8-isoprostane as biomarkers of oxidative stress. According to the results, “all phthalate metabolites were associated with higher concentrations of both biomarkers,” with mono-benzyl phthalate (MBzP), mono-n-butyl phthalate (MBP), and mono-isobutyl phthalate (MiBP) showing the strongest association with both outcome measures. “Increases in oxidative stress biomarkers in pregnant women have been associated with pregnancy loss, preeclampsia, preterm birth, and fetal growth restriction,” note the study’s authors. “These…
University of California, San Diego, researchers have presented a study at the American Heart Association’s Scientific Sessions 2014, claiming that working-age men who consumed higher amounts of trans fat “had significantly reduced ability to recall words.” According to a November 18, 2014, press release, the study analyzed dietary data from 1,000 healthy men younger than age 45 and asked them to complete a word memory test. The results evidently showed that “each additional gram a day of trans fats consumed was associated with an estimated 0.76 fewer words correctly recalled.” Participants who consumed the most trans fat remembered 11 fewer words than adults who ate the least trans fat, a 10 percent reduction in words remembered. “Trans fats were most strongly linked to worse memory, in young and middle-aged men, during their working and career-building years,” the lead author was quoted as saying. “From a health standpoint, trans fat consumption…
