Alleging damages in excess of $50 million, a company that processes and sells baby carrots, along with its liability insurers, has sued the maker of a product that was promised to increase vegetable shelf-life, alleging that carrots treated with the sanitizer “suffered elevated yeast growth and severely premature spoilage as compared to [plaintiff’s] historical experience and carrots processed using chlorine dioxide at the same time.” Wm. Bolthouse Farms, Inc. v. Ecolab, Inc., No. 10-01005 (E.D. Cal., filed December 9, 2010). The product at issue is “Tsunami 100,” which the defendant apparently began marketing to the plaintiff in 2007 as a replacement sanitizer, claiming that its higher price was justified by superior performance. According to the complaint, the defendant “never warned Bolthouse that there was any risk that Tsunami 100 would actually decrease the shelf life of the carrots being processed.” Claiming that the scientific literature made it clear that the product’s peroxyacetic…
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Seeking to represent a class of California children younger than age 8 and their parents, the mother of a 6-year-old girl has reportedly filed a putative class action against McDonald’s Corp., alleging that it baits children by advertising its “unhealthy Happy Meals” with toys and thus “has helped create, and continues to exacerbate, a super-sized health crisis in California.” Parham v. McDonald’s Corp., No. __ (Cal. Super. Ct., San Francisco Cty., filed December 15, 2010). Counsel for the plaintiff includes Stephen Gardner with the Center for Science in the Public Interest (CSPI), which announced several months ago that it would be filing such a lawsuit. According to the complaint, “Most Happy Meals are too high in calories, saturated fat, and sodium to be healthful for very young children,” and the company “is engaged in a highly sophisticated scheme to use the bait of toys to exploit children’s developmental immaturity and…
The same day that the Federal Trade Commission announced a settlement over alleged deceptive advertising claims for DanActive® beverage and Activia® yogurt, Ohio’s attorney general filed a lawsuit alleging that The Dannon Co. has violated the state’s Consumer Sales Practices Act (CSPA) by failing to substantiate the health-related claims it makes for the products. Ohio v. Dannon Co., Inc., No. 10-12-18225 (Ct. Com. Pl., Franklin Cty., filed December 15, 2010). The complaint takes issue with marketing claims that the products either promote digestive health or boost immunity. Under the authority of the CSPA, Attorney General Richard Cordray (D) brings the action “in the public interest” and seeks declaratory and injunctive relief, liability for “the reasonable costs and expenses of the investigation and prosecution of the Defendant’s actions, including attorneys’ fees,” as well as $25,000 “for each unfair or deceptive act or practice alleged herein.” According to the complaint, Activia® has…
The Federal Trade Commission has announced the settlement of allegations that The Dannon Co. exaggerated the health benefits of its Activia® yogurt and DanActive® dairy beverage. Under the terms of the settlement, Dannon does not admit any law violations, but agrees to stop promoting its yogurt as a product that relieves temporary irregularity or its dairy beverage as a product that reduces the likelihood of getting a cold or the flu, unless certain conditions are met. These include that the immunity claims are specifically permitted by the Food and Drug Administration and the irregularity claims are substantiated by competent and reliable scientific evidence. The company also agreed to pay $21 million to the 39 states whose attorneys general were also investigating its advertising claims. According to a news source, Dannon has indicated that it will in the future clarify that Activia’s benefits require three servings of the product daily. The…
A federal court in New York has entered an order approving the pre-trial discovery and motions scheduling order agreed to by the individual plaintiffs remaining in the litigation alleging that fast-food marketing caused adverse health effects related to obesity. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., order filed December 15, 2010). Under the terms of the agreement, fact discovery will close November 30, 2011; expert discovery will close April 30, 2012; and briefing on motions for summary judgment will end August 30, 2012. The court denied the plaintiff’s motion for class certification in October; additional details about the ruling appear in Issue 370 of this Update.
The Third Circuit Court of Appeals has agreed, for the most part, with the resolution of multidistrict litigation claims against pet food manufacturers involving the melamine contamination and recall of their products in 2007. In re: Pet Food Prods. Liab. Litig., Nos. 08-4741 & 08-4779 (3d Cir., decided December 16, 2010). Further details about the settlement agreement appear in Issue 283 of this Update. The court determined that certification of a settlement class was appropriate and that most of the settlement’s terms were fair and reasonable. Because the district court agreed with the settlement’s cap of “purchase claims,” that is, “claims solely for reimbursement of the costs associated with the purchase of a Recalled Pet Food Product by a Settlement Class Member who has not been reimbursed for such costs to date,” without “the information necessary to evaluate the value and allocation of the Purchase Claims,” the appeals court vacated and…
In a ruling left unchallenged when the appeal period expired, a federal court in California has determined that a plaintiff bringing state law claims about alleged misleading food labels involving trans fat were preempted by federal law and that he lacked standing as a consumer to bring a claim under the Lanham Act, which protects competitors’ interests. Peviani v. Hostess Brands, Inc., No. 10-2302 (C.D. Cal., decided November 3, 2010). The plaintiff alleged on behalf of two nationwide classes that the marketing for six 100-calorie pack Hostess Brands products violated various California consumer-fraud laws because the company represented that the products contain “0 Grams of Trans Fat” when they actually contain partially hydrogenated oils, or artificial trans fat. According to the court, federal food-labeling laws allow the use of the phrase “0 Grams of Trans Fat” for those products containing less than 0.5 gram per serving and forbid states from…
The Massachusetts Public Health Council has approved a ban on the production and sale of reusable plastic products containing bisphenol A (BPA) that are intended for children younger than age 3. Targeted mainly at baby bottles and sippy cups, the ban will reportedly take effect on January 1, 2011, for manufacturers and July 1 for retailers. “We are taking this action as a precautionary measure,” Department of Public Health Commissioner John Auerbach said in a statement. “Our goal is to protect our most vulnerable residents—our children—in the light of mounting scientific evidence about the potential dangers of BPA.” See Massachusetts Office of Health and Human Services Press Release, December 15, 2010.
The U.S. Environmental Protection Agency (EPA) has issued a final rule announcing that it has removed saccharin from its lists of hazardous substances, wastes and constituents because it “is no longer considered a potential hazard to human health.” EPA proposed on April 22, 2010, to remove the artificial sweetener from the lists, and apparently received no opposition to the plan. Commonly found in diet soft drinks, chewing gum and juice, saccharin had been labeled a potential cancer-causing substance in the 1980s. According to an EPA press release, however, the National Toxicology Program and the International Agency for Research on Cancer reevaluated scientific data on saccharin and its salts, concluding that they are not a potential human carcinogen. EPA removed the artificial sweetener from the hazardous lists because “the scientific basis for remaining” no longer applies. The final rule, which is in response to a Calorie Control Council petition to remove…
A recent National Research Council (NRC) report has apparently found no scientific evidence to support “more stringent testing of meat purchased through the government’s ground beef purchase program,” which distributes products to the National School Lunch Program and other public outlets. According to a December 9, 2010, National Academies press release, the U.S. Department of Agriculture’s Agricultural Marketing Service (AMS) purchases ground beef from suppliers “who must meet mandatory process, quality, traceback, and handling controls as well as comply with strict limitations on the amounts of bacteria in the meat, such as E. coli and salmonella.” To assess this program, the National Academies established a committee to review the scientific basis of AMS’s ground beef safety standards, evaluate how these standards compare to those used by large retail and commercial purchasers, and recommend possible improvements to the federal system. The committee evidently found that AMS’s “scientific basis for the current…
