A study of national poison control center data has reported that public and health care providers filed 5,156 incidents of energy drink exposure between October 2010 and September 2013, with 40 percent of cases involving children younger than age 6. Presented at the American Heart Association’s Scientific Sessions 2014, the new research warned that among cases with major outcomes, “cardiovascular effects (including an abnormal heart rhythm and conduction abnormalities) were reported in 57 percent of cases, and neurologic effects (seizures, including status epilepticus) in 55 percent.” The study also identified moderate or major health outcomes in 42 percent of cases involving energy drinks mixed with alcohol and 19 percent of cases involving alcohol-free energy drinks. Based on these findings, the researchers have evidently called for additional labeling to educate consumers about “energy drinks’ high caffeine content and subsequent health consequences.” “The reported data probably represent the tip of the iceberg,” said…
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The U.S. Pharmacopeial Convention (USP) has proposed “Guidance on Food Fraud Mitigation,” a new appendix to the Food Chemicals Codex (FCC), to “offer a framework for the food industry and regulators to develop and implement preventative management systems to deal specifically with economically motivated fraudulent adulteration of food ingredients.” The guidance will be published for public comment in the FCC Forum from December 31, 2014, to March 31, 2015, but USP has released it early to provide additional time for review and comment. The document was designed for broad application and to provide a structured approach to characterizing and mitigating food fraud, including guidelines to (i) assess contributory factors, (ii) assess potential impacts and (iii) develop a mitigation strategy. The briefing also promises that “similar guidance sections that tailor this general approach to specific ingredient categories such as milk-based food ingredients” will appear in the future. Issue 546
The Rudd Center for Food Policy and Obesity has published Sugary Drink FACTS 2014, a report funded by the Robert Wood Johnson Foundation that targets trends in beverage advertising to children. Claiming that companies spent $866 million on advertising for sugar sweetened beverages (SSBs) in 2013, the report argues that even though youth-oriented TV programs and websites showed fewer SSB ads in 2013 than in 2010, the advertising available “is still overwhelmingly for unhealthy drinks.” The authors point out that as SSB advertising on children’s websites declined by 72 percent, “the popularity of energy drinks and regular soda brands on social media increased exponentially from 2011 to 2014.” According to the report, energy drink and regular soda brands now represent 84 percent of the 300 million Facebook likes for the brands included in the analysis, 89 percent of 11 million Twitter followers, and 95 percent of 1.8 billion YouTube views. In…
According to a joint World Health Organization (WHO)/Food and Agriculture Organization (FAO) news release, the ministers and senior officials of 170 countries convening in Rome have adopted a Framework for Action and a Declaration on Nutrition. Opening the Second International Conference on Nutrition, WHO Secretary General Margaret Chan reportedly criticized the production of what she characterized as less healthy industrialized food and called attention to the consequences of its contribution to obesity and overweight along with the emergence of diabetes, cancers and heart disease. The commitments and recommendations set forth in the framework and declaration are intended to ensure “that all people have access to healthier and more sustainable diets.” They also commit the governments to prevent malnutrition “in all its forms, including hunger, micronutrient deficiencies and obesity.” Among other matters, governments are urged to “educate and inform their citizens about healthier eating practices” and reinforce obesity initiatives “by the creation…
The European Union’s (EU’s) Court of Justice has determined that the law requires fresh poultry meat to satisfy the microbiological criteria for foodstuffs and that national law may impose a penalty on “a food business operator which is active only at the distribution stage” for placing a contaminated food product on the market. Reindl v. Bezirkshauptmannschaft Innsbruck, No. C-443/13 (E.C.J., decided November 13, 2014). The issue arose from an Austrian proceeding involving a fine imposed on a food retail manager after a sample from her store of vacuum-packed fresh turkey breast produced and packed by another company was found to be contaminated with Salmonella Typhimurium. The Unabhāngiger Verwaltungssenat in Tirol stayed the proceeding and referred to the EU court the questions whether (i) food business operators “active at the food distribution stage” are subject to the full regime under Regulation (EC) No 2073/2005, and (ii) the microbiological criterion in the…
A consumer has filed a putative class action in California state court alleging that Anheuser-Busch’s “Lime-A-Rita” malt beverages have too many calories and carbohydrates to be sold under the Bud Light Lime® label. Cruz v. Anheuser-Busch, LLC, No. BC563150 (Cal. Super. Ct., Los Angeles Cty., filed November 12, 2014). The plaintiff alleges that she purchased Bud Light Lime Lime-A-Rita® believing it to be low in calories and carbohydrates, but later learned that a serving of 8 fluid ounces contains between 192 and 220 calories and 22.8 to 23.6 g of carbohydrates compared to Bud Light’s 110 calories and 6.6 g of carbohydrates. “In general, ‘light’ may generally describe a zero calorie or a reduced calorie food, and consumers such as Plaintiff and the Class understand the ‘light’ label on a product that has a reduced or low number of calories,” the complaint asserts. The plaintiff attributes the level of calories…
A New York federal court has rejected Wolfgang’s Steakhouse and ZMF Restaurants LLC’s motion to dismiss a case alleging that the restaurant violated the Fair and Accurate Credit Transactions Act of 2003 (FACTA) by printing credit card expiration dates on receipts. Fullwood v. Wolfgang’s Steakhouse, Inc., No. 13-7174 (S.D.N.Y., order entered November 14, 2014). The court found that the plaintiff’s amended complaint insufficiently supported its allegation that Wolfgang’s knew of the ramifications of violating FACTA yet wilfully disregarded the law, but granted her leave to amend. The plaintiff brought her putative class action after receiving a receipt from Wolfgang’s that displayed her credit card’s expiration date. She did not, however, allege any actual damages from the disclosure. Under FACTA, actual damages can be awarded for both negligent and willful violations; only willful violations, however, can result in the statutory and punitive damages that the plaintiff seeks. Accordingly, the court devoted much of…
In a dispute over commercial liability insurance coverage, the Eighth Circuit Court of Appeals has ruled that a trial court erred in deciding, as a matter of law, that a recall of sausage breakfast sandwiches prompted by contamination with monosodium glutamate (MSG) was a covered incident. Hot Stuff Foods, LLC v. Houston Cas. Co., Nos. 14-1192, -1194 (8th Cir., decided November 17, 2014). When MSG is added to foods, it must be disclosed on the product label. Hot Stuff Foods makes sausage breakfast sandwiches with sausage that does not contain MSG and does not include it on package labels. The company also distributes sausage that contains MSG and learned in January 2011 that some of the MSG sausage was inadvertently used in the breakfast sandwiches. Because the product contained MSG not disclosed on the labels, it was misbranded under federal law. The company promptly reported the situation to Food and Drug…
A Kentucky Court of Appeals panel has reversed a trial court determinationthat trespass and nuisance claims filed by residents alleging damage from the ethanol emissions of nearby distilleries are preempted under the Clean Air Act (CAA). Merrick v. Brown-Forman Corp., No. 2013-CA-002048-MR (Ky. Ct. App., decided November 14, 2014). A federal court considering similar issues has also found that state law-based claims are not preempted. That ruling is summarized in Issue 519 of this Update. In the Kentucky state court proceeding, the circuit court dismissed the action, ruling that the “federal Clean Air Act preempts source state air quality tort claims of the type asserted by” the plaintiffs. They allege that the atmospheric ethanol the distilleries emit promotes the growth of “whiskey fungus” that causes a “pervasive black film covering virtually every outdoor surface,” which requires cleaning and power washing to remove. Plaintiff Bruce Merrick owns a company that makes…
In a 10-4 vote, the Navajo Nation Council has approved a tax on “junk” foods sold on the largest reservation in the United States. If President Ben Shelly signs the measure into law, the Healthy Dine Nation Act of 2014 would apply to items like cookies, chips and soft drinks, and the revenue generated would be directed to a fund supporting farmers markets, the planting of vegetable gardens, purchase of exercise equipment, and other health-focused projects. Shelly evidently vetoed similar legislation earlier in 2014, reportedly saying that he supported the goals of the tax initiative but questioned its implementation. Proponents of the tax reportedly cite the high rates of diabetes among American Indians and Alaska Natives—the highest among U.S. racial and ethnic groups—as the main reason to pass the legislation. See Associated Press, November 15, 2014. Issue 546
