Whole Foods Market Inc. is the target of two new putative nationwide class actions, one filed in a Texas federal court regarding the amount of sugar in the company’s plain Greek yogurt and the other filed in a California state court over alleged false advertising and sales of Blue Diamond almond milk products with a “Non-GMO Project Verified” label. Kubick v. Whole Foods Mkt., Inc., No. 14-1013 (W.D. Tex., filed November 10, 2014); Richard v. Whole Foods Mkt. Cal., Inc., No. BC563304 (Cal. Super. Ct., Los Angeles Cty., filed November 7, 2014). The Texas complaint alleges that Whole Foods 365 Everyday Plain Greek Yogurt represents that it contains 2 grams of sugar per serving, when testing shows that it actually contains more than 11 grams of sugar per serving, or “more than five and a half times the labeled amount.” According to the plaintiff, a California resident, this is particularly significant because…
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According to a news source, Iowa Gov. Terry Branstad (R) and the attorneys general (AGs) of Missouri, Nebraska, Oklahoma, Alabama, and Kentucky have filed a notice that they will appeal a district court dismissal of their challenge to a California law that allegedly forces egg producers in other states to comply with a voter-approved ballot measure that bans the sale of eggs which have been produced by hens in conventional cages. Missouri ex rel. Koster v. Harris, No. 14-17111 (9th Cir., notice of appeal filed October 24, 2014). Information about a related complaint appears in Issue 512 of this Update. The district court apparently dismissed the complaint in early October on the ground that the officials lack standing to bring the lawsuit because California’s law affects only a subset of farmers who plan not to comply with it. Missouri Attorney General Chris Koster claims that the state’s farmers, who export some…
A federal court in Missouri has denied the motion to dismiss filed by a food-safety company responsible for auditing conditions at the Jensen Farms cantaloupe facility some six weeks before the U.S. Food and Drug Administration inspected the farm and found the Listeria strains associated with a nationwide outbreak that allegedly sickened the plaintiff. West v. Frontera Produce Ltd., No. 13-0943 (W.D. Mo., decided November 7, 2014). Primus Group, Inc. had argued that it owed no duty to the plaintiff, but the court disagreed, citing Missouri case law, which is consistent with the Restatement (Second) of Torts, Section 324A, allowing liability for third persons who render services that should be recognized “as necessary for the protection of a third person or his things.” According to the court, the plaintiff sufficiently stated a cause of action against the defendant, “given that Primus assumed a duty pursuant to contract and the performance of that duty…
According to press reports, New York Assemblyman Karim Camara (D-Brooklyn) announced this week that he intends to propose legislation requiring sugar-sweetened beverages (SSBs) to carry labels cautioning that their consumption contributes to “obesity, diabetes and tooth decay.” He introduced a similar bill (A10172) in August 2014, but no action was apparently taken on that initiative. “We can’t sit back and pretend that sugary drinks aren’t harmful to people,” Camara was quoted as saying. “The research is clear—too much sugar leads to health problems such as obesity and diabetes.” A California Assembly committee defeated like-minded legislation earlier in 2014. More details about that proposal appear in Issue 527 of this Update. See The New York Post, November 13, 2014. Issue 545
The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) has determined that KK179 alfalfa, a genetically engineered (GE) crop that was created “to express reduced levels of guaiacyl lignin, a major subunit component of total lignin that slows the digestion of cellulose in livestock, as compared to conventional alfalfa at the same stage of growth,” is unlikely to constitute a plant pest, thus granting Monsanto Co. and Forage Genetics International’s petition for nonregulated status. APHIS found no significant impact following several opportunities for public comment on the petition and the preparation of an environmental assessment. See Federal Register, November 10, 2014. Issue 545
The U.S. Department of Agriculture’s (USDA’s) Animal and Plant Health Inspection Service (APHIS) has approved for commercial planting a new variety of potato genetically engineered (GE) for low acrylamide and reduced black spot bruise. The potatoes in question use a technique known as RNA interference to silence genes involved in bruising and the production of acrylamide, which USDA defines as “a human neurotoxicant and potential carcinogen that may form in potatoes and other starchy foods under certain cooking conditions.” Submitted by J. R. Simplot Co., the petition for Innate™ potatoes (E12, E24, F37, J3, J55, J78, G11, H37, and H50) underwent plant and environmental risk assessments as well as a review period that generated more than 40,000 public comments—many of them identical raising concerns about “potential effects on conventional potato production, export markets, and plant fitness.” After reviewing all available data, APHIS issued a final environmental assessment with a finding…
A new study exploring the link between cardiovascular disease and a gut bacteria metabolite known as trimethylamine-N-oxide (TMAO) has reported that “higher TMAO levels predict higher future risk of death from heart failure, independent of other clinically used blood tests or risk factors.” W.H. Wilson Tang, et al., “Prognostic Value of Elevated Levels of Intestinal Microbe-Generated Metabolite Trimethylamine-N Oxide in Patients With Heart Failure: Refining the Gut Hypothesis,” Journal of the American College of Cardiology, November 2014. Led by the Lerner Research Institute’s Department of Cellular and Molecular Medicine Chair Stanley Hazen, a Cleveland Clinic team followed 720 patients with stable heart failure over a five-year follow-up period, finding that “higher plasma TMAO levels were associated with a 3.4-fold increased mortality risk.” They also noted that patients with elevated levels of TMAO and B-type natriuretic peptide “had more than a 50 percent mortality rate over [five] years.” This latest study builds…
The Center for Science in the Public Interest (CSPI) has submitted a request to the U.S. Food and Drug Administration (FDA) under the Freedom of Information Act for “the data collected by the Center for Veterinary Medicine under its Raw Milk Drug Residue Survey.” According to CSPI, FDA conducted the survey in 2012 “because excess and sometimes illegal drugs are more frequently found in animals from dairy farms at slaughter plants than animals coming from other sources.” CSPI’s review of drug testing reports in 2011 purportedly revealed that “animals coming from dairy farms accounted for 67 percent of reported drug residue violations at slaughter” and that, in some cases, “the reported residues were for drugs that are not approved for use in cattle.” While FDA informed consumer groups that it would make the raw data available when its report is released, it has yet to release the survey results. CSPI attorney…
Bob Evans servers who were paid under the “tip credit” provisions of the Fair Labor Standards Act (FLSA) claim in a collective action filed in a Florida federal court that they “were not compensated at least the proper minimum wage for all hours worked as a result of being required to pay for uniforms.” McDaniel v. Bob Evans Farms, LLC, No. 14-2767 (M.D. Fla., filed November 3, 2014). Named plaintiff Emily McDaniel alleges that she was paid an hourly rate of $4.77 plus tips, which increased to $4.91 plus tips, and that she and other servers “were required to pay Defendant for uniforms, including but not limited to, Bob Evans T-shirts and aprons.” She claims that this resulted in an FLSA violation because servers “have not been paid the minimum wage for each hour worked during their employment.” She seeks certification of a class of servers, declaratory relief and awards of…
A California resident has filed a putative nationwide class action in federal court against Olé Mexican Foods, Inc., alleging that its Xtreme Wellness® whole-wheat tortillas contain partially hydrogenated vegetable oil, “banned in many parts of the world due to its artificial trans fat content,” thus belying the health and wellness representations the company uses on product labels. Guttmann v. Olé Mexican Foods, Inc., No. 14-4845 (N.D. Cal., filed October 31, 2014). The plaintiff alleges that artificial trans fat causes cardiovascular disease; Type 2 diabetes; breast, prostate and colorectal cancer; Alzheimer’s disease and cognitive decline; and damage to vital organs. He claims that he purchased one package each month for two years at a higher price than comparable products relying on package labeling stating “Healthy Life Style,” “Better Choice for Your Health,” “Whole Wheat,” and “High Source of Fiber and Protein.” According to the complaint, because the product contains trans fat, small amounts…
