Addressing a question of first impression, a California appeals court has dismissed a putative class action alleging that Herb Thyme Farms mislabeled its certified organically grown herbs as “USDA Organic” because the contents included a mix of organically and conventionally grown herbs. Quesada v. Herb Thyme Farms, Inc., No. B239602 (Cal. Ct. App., 2d Dist., Div. 3, decided December 23, 2013). According to the court, on appeal, the plaintiff changed her theory of liability from alleged violations of state consumer protection laws to violation of the California Organic Products Act of 2003, a federally approved state organic program. She cited Farm Raised Salmon Cases, 42 Cal. 4th 1077 (2008), to counter the trial court’s conclusion that her claims were preempted under federal law. Distinguishing Farm Raised Salmon Cases, the court was guided instead by Aurora Dairy Corp. Organic Milk Marketing & Sales Practices Litigation v. Aurora Organic Dairy, 621 F.3d 781…
Posts By Shook, Hardy & Bacon L.L.P.
Maine Gov. Paul LePage (R) has signed a bill (L.D. 718) that will require labeling for foods containing genetically modified (GM) ingredients if at least five other states or a state with a population of at least 20 million passes similar legislation. Restaurants will be exempt from the disclosure requirements, and alcoholic beverages and medical foods would not be required to carry the required labels. Those products subject to the law’s provisions would be required to contain “a conspicuous disclosure that states ‘Produced with Genetic Engineering,’” and such products could not described or identified as “natural.” Issue 509
The U.K. Advertising Standards Authority (ASA) has upheld a complaint alleging that PepsiCo International Ltd. t/a Naked Juice made antioxidant health claims on its website that were unauthorized by the EU Register of Nutrition and Health Claims for Foods (the EU Register). According to ASA, Naked Juice argued that health claim guidance issued by the European Commission failed to establish whether the term “antioxidant” “was a specific health claim or a non-specific, general health claim.” As a result, the company considered that the term was a non-specific, general health claim, “and it was therefore permissible to use it, provided it was accompanied by a specific health claim which was authorized on the EU Register” – in this case, specific claims about the Vitamin C contents of the “Green Machine” and “Mango Machine” smoothies singled out in the complaint. But ASA disagreed with this reasoning, ultimately concluding that both the commission’s…
The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC) has issued a request for comments on Chapter 6 and a new section of Chapter 8 of its draft document, “Criteria for a Recommended Standard: Occupational Exposure to Diacetyl and 2,3-pentanedione.” Details about diacetyl, a butter-flavoring chemical used in baked goods and microwave popcorn, and pentanedione, a flavoring agent, appear in Issue 403 of this Update. Comments will be accepted until February 10, 2014. See Federal Register, December 26, 2013. Issue 509
The Food Safety and Inspection Service (FSIS) is requesting comments on its draft guidance for controlling Salmonella in hog slaughter facilities. Intended to “provide information on best practices to prevent, eliminate or reduce levels of Salmonella on hogs at all stages of slaughter and dressing,” FSIS issued the guidance in response to recent Salmonella outbreaks implicating pork. Stating that facilities improving contamination control at appropriate processing locations will “likely produce raw pork products that have fewer pathogens, including Salmonella,” the Salmonella Action Plan describes steps involved in the hog slaughter process and production of raw products, with each step targeting best practice recommendations for Salmonella contamination control. It also includes information on farm rearing and transport intended for establishments to share with their suppliers and producers. Comments will be accepted until March 7, 2014. See Federal Register, January 6, 2014. Meanwhile, a report from the Pew Charitable Trusts argues that FSIS…
The U.S. Food and Drug Administration (FDA) has announced a public meeting on February 20, 2014, in College Park, Maryland, to “discuss its proposed rule to require domestic and foreign food facilities that are required to register under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) to address hazards that may be intentionally introduced by acts of terrorism.” The agency has proposed the requirement as part of its implementation of the Food Safety Modernization Act. FDA will accept comments until March 31. See Federal Register, December 24, 2013.
The American Tort Reform Foundation has published the 2013-2014 issue of its “Judicial Hellholes” report, placing California, in part for the many lawsuits against food and beverage companies filed there, at the top of the list of jurisdictions with “plaintiff-friendly consumer protection laws” and courts purportedly receptive to such lawsuits. According to the report, plaintiffs’ lawyers “have filed a surge of consumer class actions targeting what they have labeled as ‘Big Food’” in California courts. “Some of these claims are brought by veterans of lawsuits against the tobacco industry who are looking for the next deep pocket to sue. About a dozen plaintiffs’ law firms have taken to the courts with gusto, filing about 75 class action lawsuits between them in the past few years. By one count, which includes filings from additional firms, more than 100 consumer class actions were filed against food makers in 2012 alone, five times…
Advocacy organizations including the Center for Food Safety and Food & Water Watch have filed an amicus brief to support an animal rights organization coalition’s challenge to a Utah law that criminalizes undercover investigations of meat and poultry processing facilities. Animal Legal Def. Fund v. Herbert, No. 13-0679 (D. Utah, brief filed December 17, 2013). Contending that the government has failed to prevent illegal animal-handling practices that ultimately threaten consumer safety and that consumers have the right to know how food is produced, the brief calls for the court to decide the challenge to Utah’s “ag-gag” law, Utah Code Ann. § 76-6-112, on the merits. Among other matters, amici refer to the undercover investigation conducted by the Humane Society of the United States in 2007 of a Hallmark/Westland facility and its conclusion in a U.S. Department of Agriculture ground-beef recall over concerns that the meat “did not receive complete and proper inspection…
A federal court in California has dismissed, without prejudice, the action for declaratory and injunctive relief brought against the San Francisco city attorney, seeking to halt his investigation of Monster Beverage’s energy drinks and efforts to regulate their formulation, labeling and promotion. Monster Beverage Corp. v. Herrera, No. 13-0786 (C.D. Cal., decided December 16, 2013). Additional information about the lawsuit appears in Issue 482 of this Update. The matter was before the court on the city attorney’s renewed motion to dismiss. Essentially, the court determined that the Younger abstention doctrine, which “counsels federal-court abstention when there is a pending state proceeding,” applied because a state action brought by the city attorney is pending, the action implicates important state interests, not all of the city attorney’s claims are preempted under federal food-labeling laws, and the state proceedings will be adequate for the consideration of Monster’s constitutional claims. Details about the city…
The Seventh Circuit Court of Appeals has determined that Phusion Projects’ commercial liability insurance carriers have no duty to defend the company in actions alleging that intoxication attributable to consumption of its Four Loko® alcoholic product caused death and personal injury. Netherlands Ins. Co. v. Phusion Projects, Inc., No. 12-1355 (7th Cir., decided December 16, 2013). Applying Illinois law, the court ruled that the liquor liability exclusions in the relevant insurance contracts unambiguously excluded coverage for bodily injury or property damage when the company “may be held liable by reason of: (1) causing or contributing to the intoxication of any person.” So ruling, the court affirmed the lower court’s grant of the insurance carriers’ motion for summary judgment. Issue 508
