German authorities have finally narrowed the field of suspects in an E. coli outbreak affecting Europe, where a reported 31 people have died from a rare strain of the disease. Speaking at a June 10, 2011, press conference, Robert Koch Institute President Reinhard Burger confirmed that an organic bean sprout farm is the likely epicenter, putting to rest widespread public confusion as officials worked frantically—and sometimes erroneously—to pinpoint the source. Although it lacked a set of definitive test results, the institute apparently based its conclusion on evidence showing that people who consumed the bean sprouts at one restaurant were nine times more likely to contract the illness, which has been linked to renal and neurological complications in approximately 700 out of 3,000 total cases. Authorities have since quarantined the Lower Saxony farm, but tomato, cucumber and lettuce farmers implicated at the outset are already seeking compensation for plummeting prices and…
Posts By Shook, Hardy & Bacon L.L.P.
The U.S. Department of Agriculture (USDA) has reportedly found at least 34 unapproved pesticides on cilantro samples during routine testing. According to the agency’s recently issued 2009 Pesticide Data Program report, 94 percent of the 184 samples tested in a rotating selection of produce came up positive for at least one pesticide. With no definite answers as to why the cilantro samples contained pesticide residues, government researchers have suggested that growers may have confused guidelines for cilantro with those for flat-leaf parsley, which is approved for more pesticides. Asserting that they will take follow-up action, some industry leaders are equally puzzled. “It’s something we need to look into,” Kathy Means of the Produce Marketing Association was quoted as saying. “We need to determine: Why this year, why this crop? What’s going on?” See Chicago Tribune, May 31, 2011.
The U.S. Department of Agriculture (USDA) has launched a new food icon aimed at helping consumers make healthier food choices. By replacing the pyramid guide to healthy eating with a plate divided into fruit, vegetable, grains, protein, and dairy food groups, USDA reportedly hopes the MyPlate icon will “prompt consumers to think about building a healthy plate at meal times.” New York University Professor Marion Nestle was among those who praised the icon as an easy-to-understand nutrition guide. “The new plate icon makes it clear that healthy eating means lots of vegetables, fruits, and whole grains, and for that alone it is a big step forward,” she said. “You don’t need a computer to use it. It lets you fill your plate with whatever foods you like without worrying about portion numbers. Best of all are the messages that come with it. Enjoy your food!” See USDA Press Release, June…
The World Cancer Research Fund/American Institute for Cancer Research (WCRF/AICR) has issued a colorectal cancer report allegedly concluding “that red and processed meat increase risk of the disease.” Part of the groups’ Continuous Update Project, which in 2007 covered 749 papers on colorectal cancer, the 2011 report reviews 263 additional papers examining “the links between colorectal cancer risk and diet, physical activity and weight.” According to a May 23, 2011, press release, the findings provide “convincing evidence that both red and processed meat increase colorectal cancer risk,” while “foods containing fiber offer protection.” Billed by WCRF/AICR as “the most comprehensive and authoritative report on colorectal cancer risk ever published,” the meta-analysis also suggested that “ounce for ounce, consuming processed meat increases risk twice as much as consuming red meat.” WCRF/AICR recommends that “people limit consumption to 18 ounces (cooked weight) of red meat a week – roughly the equivalent of…
Rumors that Denmark banned the sale of Marmite and other savory yeast extract spreads because they contain added vitamins have apparently given rise to online protests and calls to boycott iconic Danish brands such as Lego®. Media sources have reported that Marmite fans rallied on Facebook and other social media sites after hearing that the Danish Veterinary and Food Administration (DVFA) ordered the product off store shelves along with other fortified foods like Ovaltine and Vegemite. “Spread the word, but most importantly spread the Marmite,” wrote the founder of one Facebook page devoted to expat Marmite aficionados. “Let the rise of the Marmite army begin!” According to DVFA, however, authorities have not banned the spread but simply reiterated that foods with added vitamins, minerals or other substances cannot be marketed in Denmark without agency review and approval. “Products with food additives, vitamins and minerals claims in their marketing need to…
A man who claims that his consumption of Ocean Spray’s 100% Cranberry Pomegranate Juice® caused his food poisoning and other related injuries, has filed an individual action against the company, retailers and a testing laboratory in an Illinois state court. Mihalopoulos v. Ocean Spray Cranberries, Inc., No. 2011L005420 (Ill. Cir. Ct., Cook Cty., filed May 25, 2011). The plaintiff alleges that the product was contaminated with a “fungus known as Penicillium Glabrum.” Part of the complaint alleges that a testing laboratory confirmed the presence of the fungus in the product, but failed to preserve the juice sample, which the plaintiff contends will prejudice his ability to prosecute the remainder of his claims. Alleging strict products liability, negligence and spoliation of evidence, the plaintiff seeks damages in excess of $50,000 for his “severe and permanent injury,” medical costs and future economic losses.
According to a news source, a Florida resident has filed a putative class action against Kraft Foods Global, Inc., alleging that the packaging for its Oscar Mayer® deli meat products misleads consumers by declaring the meat to be 98 percent fat free, with 50 calories per serving. McDougal v. Kraft Foods, Inc., No. 11-61202 (S.D. Fla., filed May 23, 2011). The plaintiff contends that consumers are misled to believe that just 2 percent of the 50 calories come from fat, when 20 percent of the calories per serving actually come from fat. Seeking to certify statewide and nationwide classes, the plaintiff alleges violation of consumer protection laws, breach of express warranty and unjust enrichment. The complaint is similar to one filed in a different federal district in Florida in April. Additional details about that lawsuit appear in Issue 391 of this Update. See Law360, May 24, 2011.
Celestial Seasonings has filed a complaint against Mexican and Texas companies that are allegedly infringing its Sleepytime trademark with a tea product sold under a “Sleeping Time” mark. The Hain Celestial Group, Inc. v. Royal Tea S.A. de C.V., No. 11-2504 (E.D.N.Y., filed May 24, 2011). According to the complaint, Celestial began registering its marks for tea and dietary supplements in 1975. Contending that the defendants’ Sleeping Time mark is “confusingly similar,” Celestial alleges that the defendants were fully aware of Celestial’s rights to the Sleepytime mark because they tried to cancel Celestial’s Mexican trademark registration. The complaint alleges trademark infringement, trademark dilution and unfair competition under federal law, and related counts under state law. The plaintiff seeks a permanent injunction, destruction of infringing inventory and advertising, treble damages, costs, and attorney’s fees.
Selective Insurance Co. of South Carolina has filed a declaratory judgment action against Phusion Projects, Inc., which makes and sells the caffeinated alcohol beverage Four Loko®, claiming that it owes no duty to defend or indemnify Phusion in a number of pending lawsuits. Selective Ins. Co. of S. Car. v. Phusion Projects Inc., No. 11-03378 (N.D. Ill., filed May 19, 2011). The lawsuits involve claims that the product was responsible for teenagers’ deaths or injury, its promotions violated consumer protection laws, and the product’s packaging infringed trade dress. According to the insurer, (i) its policy was not in effect as to some of the plaintiffs, whose alleged injuries occurred either before the policy took effect or after the insurer cancelled the policy; and (ii) the policy’s terms expressly or unambiguously preclude coverage for certain claims, including those involving intoxication. The insurer seeks a declaration that the policy does not provide coverage for…
A coalition of non-profit advocacy organizations has filed a complaint for declaratory and injunctive relief against the Food and Drug Administration (FDA), alleging that the agency has unreasonably delayed action on several of its petitions relating to the use of antibiotics in animal feed. Natural Res. Def. Council v. FDA, No. 11-3562 (S.D.N.Y., filed May 25, 2011). The plaintiffs seek orders compelling the agency to “withdraw approval for subtherapeutic uses of penicillin and tetracyclines, unless FDA’s findings are reversed in new administrative proceedings.” According to the complaint, while FDA determined in 1977 that these drugs” have not been shown to be safe,” it never withdrew its approvals for the drugs’ subtherapeutic uses. Contending that “misuse and overuse of antibiotics has given rise to a growing and dangerous trend of antibiotic resistance,” the coalition alleges that some of its organizations filed citizen petitions in 1999 and 2005 requesting that FDA “withdraw approvals…
