A federal court in New Jersey has granted in part the motion to dismiss filed by the Campbell Soup Co. in litigation alleging that consumers were misled by the company’s lower-sodium labels, believing they were a healthier alternative to regular soups, which allegedly contain about the same levels of sodium as the more expensive low-sodium versions. Smajlaj v. Campbell Soup Co., No. 10-1332 (D.N.J., decided March 23, 2011). The plaintiffs seek to represent a nationwide class of consumers, and named plaintiff Rosa Smajlaj has voluntarily dismissed her claims, so the suit will proceed with four other New Jersey residents as named plaintiffs. The defendant sought to dismiss the claims under the plausibility pleading standard established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and on the basis of federal preemption. The court determined that the claims of misleading labels were not…
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The U.S. Department of Justice (DOJ) has reached a settlement with Dean Foods Co. over antitrust concerns about its acquisition of the Foremost Farms USA Coop. Under the agreement, which will be published in the Federal Register for comment and must undergo court approval, Dean will “divest a significant milk processing plant in Waukesha, Wis., and related assets . . . including the Golden Guernsey brand name.” The agreement also apparently requires Dean to “notify the department before it makes any future acquisition of milk processing plants for which the purchase price is more than $3 million.” According to DOJ, the divestiture will “restore competition in the sale of milk to schools, grocery stores, convenience stores and other retailers in Illinois, Michigan and Wisconsin.” See Department of Justice Press Release, March 29, 2011.
Finding that the class definition approved by the district court was inconsistent with its analysis of the class certification requirements, the Eleventh Circuit Court of Appeals has returned litigation over the purportedly misleading digestive health claims for YoPlus yogurt to a district court in Florida. Fitzpatrick v. General Mills, Inc., No. 10-11064 (11th Cir., decided March 25, 2011). Additional information about the case appears in Issue 296 of this Update. When it decided to grant the plaintiffs’ motion for class certification, the district court apparently defined the class as “all persons who purchased YoPlus in the State of Florida to obtain its claimed digestive health benefit.” The defendant challenged this definition on the ground that it requires individualized fact-finding, and the court had specifically determined that common issues predominate over individualized issues. According to the appellate court, the district court “conducted a detailed analysis of the requirements necessary for a…
The Eleventh Circuit Court of Appeals has affirmed a district court ruling finding that a $97 million judgment entered by a Nicaraguan court to compensate 150 Nicaraguan agricultural workers for injuries allegedly caused by workplace exposure to a pesticide is unenforceable under Florida law. Osorio v. Dow Chem. Co., No. 10-11143 (11th Cir., decided March 25, 2011). The appellate court agreed that (i) “the Nicaraguan court lacked subject matter jurisdiction and/or personal jurisdiction over the defendants”; (ii) “the foreign judgment could not be recognized in Florida because the judgment was ‘rendered under a system which does not provide . . . procedures compatible with the requirements of due process of law’”; and (iii) “the Nicaraguan judgment could not be recognized under Florida law because doing so would be repugnant to Florida public policy.” The court declined to address whether Nicaragua “as a whole ‘does not provide impartial tribunals’” and also…
Representatives of the European Parliament and Council of the European Union (EU) have reportedly failed to reach an agreement on legislation that would have prohibited the sale of food produced from cloned animals. The impasse means the EU’s 1997 law remains in effect; it requires government approval to sell milk and meat from cloned animals but does not ban cloning or importing food from cloned animals. Lawmakers have been in agreement with EU consumers in wanting to ban cloned foods, but the recent clash centered over the labeling of food products from the descendants of cloned animals. Parliament proposed mandatory labeling of such products, but council members wanted labels on fresh beef only. “We made a huge effort to compromise but we were not willing to betray consumers on their right to know whether food comes from animals bred using clones,” Parliament members Gianni Pittella and Kartika Liotard said in…
The Senate Judiciary Committee has sent to the Senate a food safety crime bill (S. 216). Designed to “strengthen criminal penalties for companies that knowingly violate food safety standards and place tainted food products on the market,” the legislation would increase offenses from a misdemeanor to a felony, establish fines and give law enforcement the ability to seek prison sentences of up to 10 years. “The fines and recalls that usually result from criminal violations under current law fall short in protecting the public from harmful products,” Leahy said in a statement. Details of the Food Safety Accountability Act, first proposed in summer 2010 by Senator Patrick Leahy (D-Vt.) and reintroduced in January, appear in Issue 380 of this Update. See Press Release of Senator Patrick Leahy, March 31, 2011.
The U.S. Environmental Protection Agency (EPA) and Food and Drug Administration (FDA) have issued a joint March 30, 2011, statement confirming traces of radiation in domestic cow’s milk, which the agencies have been monitoring since an earthquake and tsunami in Japan compromised the Fukushima prefecture’s nuclear power plant. A screening sample taken near Spokane, Washington, apparently contained 0.8 pCi/L of iodine-131, an amount “more than 5,000 times lower than the Derived Intervention Level set by FDA.” Based “on very conservative assumptions,” this level defines the threshold at which “protective measures would be recommended to ensure that no one receives a significant dose.” “Iodine-131 has a short half-life of approximately eight days,” said the agencies. “These types of findings are to be expected in the coming days and are far below levels of public health concern, including for infants and children.” See FDA’s Radiation Safety: New and Updated Information, March 29,…
The Food and Drug Administration’s (FDA’s) Food Advisory Committee has reportedly rejected a proposal to require warning labels for artificial food dyes, thereby confirming its earlier position that “a causal relationship between exposure to color additives and hyperactivity in children in the general population has not been established.” The committee addressed the issue at a March 30-31, 2011, meeting, where it heard testimony from experts, consumers and advocacy groups like the Center for Science in the Public Interest (CSPI), which has long urged FDA to follow Europe’s example in encouraging companies to switch to non-synthetic alternatives. “It is to the great shame of many U.S.-based food companies that they are marketing safer, naturally colored products in Europe but not the United States,” opined CSPI Executive Director Michael Jacobson in a March 30, 2011, statement. See The New York Times, March 29, 2011; NPR, March 30, 2011. In particular, the advisory…
Relying on the first-to-file rule, a federal court in New Jersey has transferred a putative class action alleging false advertising for a Breyers ice cream product to a federal court in California that is considering similar litigation. Catanese v. Unilever d/b/a/ Breyers, No. 10-5755 (D.N.J., decided March 28, 2011). The plaintiffs in a number of cases have alleged that ice cream containing alkalized cocoa cannot be advertised as “all natural” because alkalized cocoa powder is chemically altered. The first such case was filed in a California federal court against Ben & Jerry’s, a Unilever company, in September 2010. A nearly identical action involving Breyers products was also filed in a California federal court three days before the Catanese plaintiffs filed their complaint. According to the court, “Conducting this class action in one forum will benefit both the public and private interests by avoiding duplicative litigation.” Information about a similar case filed in…
A recent study based on toenail clippings has reportedly turned up “no evidence” of any link between dietary mercury exposure and coronary heart disease, stroke, or total cardiovascular disease. Dariush Mozaffarian, et al., “Mercury Exposure and Risk of Cardiovascular Disease in Two U.S. Cohorts,” New England Journal of Medicine, March 24, 2011. Researchers evidently used toenail clippings from approximately 7,000 people to gauge long-term mercury and selenium exposure from fish consumption, as well as collected dietary and health data from a second cohort of 173,000 participants. The results reportedly found no difference in heart disease and stroke rates for those in the top quintile for mercury concentrations and those in the bottom. Previous research had raised questions about whether the mercury content of shark, swordfish and other predatory species outweighed the cardiovascular benefits associated with high fish consumption. “Basically, what we found was very simple and very clear,” one study author…
