The Ninth Circuit Court of Appeals has denied a request for interlocutory review of a class certification ruling in an action alleging that Blue Diamond Growers’ almond milk is mislabeled as “All Natural” and the company hides its added sugar content by listing “evaporated cane juice” (ECJ) on its label instead. Blue Diamond Growers v. Werdebaugh, No. 14-80084 (9th Cir., order entered August 22, 2014). Additional details about the suit appear in Issue 525 of this Update. Blue Diamond challenged the district court’s ruling that the class was ascertainable, arguing that the decision “exacerbates a split of authority amongst district courts in this Circuit over the threshold showing that putative class representatives must make to demonstrate an ascertainable class in food mislabeling cases. The Third Circuit Court of Appeals—the only circuit to squarely resolve the issue—holds that sales records or other reliable evidence of product purchases must be available for a…
Posts By Shook, Hardy & Bacon L.L.P.
A district court erred in denying class certification and granting summary judgment to Sturm Foods and its parent company Treehouse Foods in a putative class action accusing the coffee manufacturer of misleading consumers to believe its Keurig-compatible coffee pods contained high-quality coffee rather than low-quality instant coffee, the Seventh Circuit Court of Appeals has decided. Suchanek v. Sturm Foods, Inc., No. 13-3843 (7th Cir., order entered August 22, 2014). The court found that the district court’s reasoning for denying class certification would make consumer class actions nearly impossible. Combined from four separate consumer protection lawsuits, the case centers on Sturm’s Grove Square Coffee (GSC) pods. The Keurig K-Cup typically contains ground coffee beans and a filter system, but the filter technology was protected by a patent until 2012. In 2010, Sturm began manufacturing pods that could be used in Keurig brewers, but to avoid infringing the patent, the company apparently…
New York City Council Member Benjamin Kallos (D-Upper East Side) has introduced legislation (442-2014) that would allow toy giveaways, digital rewards and other incentives only in children’s meals that meet strict nutritional requirements. If adopted, the Healthy Happy Meals Act would define “incentive item” as (i) “any toy, game, trading card, admission ticket or other consumer product, whether physical or digital, with particular appeal to children, which is provided directly by the restaurant,” or (ii) “any coupon, voucher, ticket, token, code or password which is provided directly by the restaurant and is redeemable for or grants digital or other access to any toy, game, trading card, admission ticket, or other consumer product with particular appeal to children.” The proposed rules would require children’s meals that offer such items to contain one serving of fruit, vegetable or whole grains and less than 500 calories and 600 milligrams of sodium. In addition,…
Health Canada has announced the implementation of new rules requiring mechanically tenderized beef (MTB) products to be labeled as such. Effective August 21, 2014, the mandatory labeling requirements—which previously applied only to federally registered producers of MTB cuts—now cover “all industry sectors selling uncooked MTB to other industry members or consumers,” including retailers, butcher shops, meat processors, and importers. Under the new rules, the labels must also include instructions for safe cooking that “emphasize the importance of cooking MTB to a minimum internal temperature of 63°C (145°F) and turning over mechanically tenderized steaks at least twice during cooking to kill harmful bacteria.” “Without clear labels, it is difficult for consumers to know which beef products have been mechanically tenderized,” said Minister of Health Rona Ambrose in an August 21, 2014, press release. “Today’s announcement, along with new industry labelling guidelines we have released, will help Canadians know when they are…
According to the Wall Street Journal, the World Trade Organization (WTO) has decided for Canada and Mexico and against the United States in a battle over country-of-origin labeling (COOL) of meat products. The decision has reportedly been disclosed to the three governments and is expected to be made public in late September or early October, after which the United States has 60 days to appeal. Canada and Mexico argued that the COOL rules harmed them by restricting their competitiveness. In recent months, members of the food industry and of Congress have argued against the COOL requirements. Additional information appears in Issues 529 and 533 of this Update.
The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) seeks public comments on its environmental assessment of the proposed field release of a genetically engineered (GE) diamondback moth. A plant pest that feeds on cruciferous crops, such as broccoli, Brussels sprouts, cabbage, Chinese cabbage, cauliflower, collard, kale, kohlrabi, mustard, radish, turnip, and watercress, the diamondback, also known as the cabbage moth, is said to be highly fecund, capable of migrating long distances when carried by the wind and short lived. Some researchers attribute the increasing significance of the moth as a plant pest to insecticide resistance. The GE variety has been developed for “repressible female lethality and to express red fluorescence as a marker.” According to APHIS, “The purpose of the field release is to assess the feasibility and efficacy of these moths in reducing populations of non-genetically engineered diamondback moths.” Cornell University requested the permitted field…
The Department of Commerce has issued an affirmative preliminary determination in a countervailing duty (CVD) investigation of sugar imports from Mexico, and the United States is preparing to impose import duties as high as 17 percent on Mexican sugar. According to an International Trade Administration fact sheet, the CVD investigation was instituted in March 2014 after domestic sugar interests filed a petition seeking relief from “the market distorting effects caused by injurious subsidization of imports into the United States.” Beginning the first week of September, Commerce will instruct U.S. Customs and Border Protection to require cash deposits based on the preliminary subsidy rates calculated for different Mexican exporters. A final determination in the matter is scheduled for January 2015. An American Sugar Alliance spokesperson said that the August 26, 2014, determination “validates our claim that the flood of Mexican sugar, which is harming America’s sugar producers and workers, is subsidized…
U.S. Food and Drug Administration (FDA) researchers recently presented dietary exposure assessments for 4-methylimidazole (4-MEI) at the 248th American Chemical Society (ACS) National Meeting held August 10-14, 2014, in San Francisco. Contributing to FDA’s review of available toxicological data for 4-MEI found in Class III and IV Caramel colors produced using ammonium compounds, the scientists analyzed 4-MEI levels of caramel-containing foods and beverages using liquid chromatography-tandem mass spectrometry, then relied on intake data from the National Health and Nutrition Examination Survey (NHANES) to estimate dietary exposure levels for the following U.S. population groups: (i) “the U.S. population aged 2 years or more”; (ii) “infants (< 1 year old)”; (iii) “children aged 1 year”; (iv) “children aged 2-5 years”; (v) “children aged 6-12 years”; and (vi) “teenage boys aged 12-18 years.” According to the presentation poster, the caramel-containing food categories contributing more than 1 percent “to the cumulative dietary exposure to 4-MEI…
Discussing the expedited approval process for food additives that took effect 17 years ago, U.S. Food and Drug Administration (FDA) Deputy Commissioner for Food Michael Taylor recently told Washington Post reporter Kimberly Kindy that the agency does not have “the information to vouch for the safety of many of these chemicals.” According to the August 17, 2014, article, the number of additives in the food supply has increased to 9,000 from 800 over a 50-year span, in part because a voluntary certification system dependent on industry safety data has eclipsed FDA’s independent review process. Under the Generally Recognized as Safe (GRAS) scheme, companies need only submit a summary of their safety research to FDA, shortening time to approval even for new and novel food additives. In particular, the Post highlights how a mycoprotein marketed as “Quorn” achieved GRAS status despite one undisclosed study allegedly showing that 5 percent of test…
Michael Specter has profiled “the Gandhi of grain,” Vandana Shiva, in a piece for the New Yorker that describes her as “a hero to anti-[genetically modified organisms (GMOs)] activists everywhere” while criticizing her inflammatory methods and unscientific arguments. Specter chronicles many of Shiva’s recent provocative statements—including a speech calling fertilizer “a weapon of mass destruction” and a tweet comparing GMOs on organic farms to rape—and attempts to debunk a few of her positions. In March 2014, Shiva told a Winnipeg food-rights group that GMOs and their associated herbicides caused the rise in autism, and Specter argues that she had merely confused causation with correlation, pointing out that the rise in autism also correlates with the sale of organic produce, the sale of high-definition televisions and the number of Americans who commute to work each day by bicycle. In addition, Shiva has apparently stated that the use of GM cotton in…
