Shook, Hardy & Bacon Global Product Liability Partner Holly Pauling Smith and Agribusiness & Food Safety Co-Chair Madeleine McDonough have co-authored this chapter on the consumer-fraud class actions to which plaintiffs’ lawyers have resorted given their inability to persuade courts to certify personal-injury mass torts. The chapter, which focuses on recent cases involving health-related claims or omissions for food and beverage products, appears in an international reference on class and group actions. Smith and McDonough have also contributed a chapter discussing how the class-action procedure functions in the United States.
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A coalition of major farm, food and fuel industry trade groups has reportedly filed a lawsuit in the D.C. Circuit Court of Appeals to challenge the Environmental Protection Agency’s (EPA’s) decision to allow gasoline with up to 15 percent ethanol (E15) to be sold for vehicles made in the 2007 model year or later. The coalition, which includes the American Petroleum Institute, apparently contends that tests to determine whether the blend will damage these cars, light-duty trucks and SUVs have not been completed. Under the Clean Air Act, EPA may not approve a new fuel additive unless it “will not cause or contribute to a failure of any emission control device or system.” The industry interests also claim that EPA lacks the authority to grant a “partial waiver” to allow the fuel to be used in only some vehicles, saying the agency should not approve the fuel unless it is…
The Washington State Liquor Control Board (WSLCB) has passed a resolution to temporarily “prevent the further sale and distribution of malt beverage products containing caffeine and other stimulants.” Washington Governor Christine Gregoire (D) joined WSLCB in announcing the measure, citing reports that nine Central Washington University students “became dangerously ill” after consuming alcoholic energy drinks (AEDs). “Quite simply, these drinks are trouble. They contain up to 12 percent alcohol – more than twice the amount found in most beer,” Gregoire was quoted as saying. “Added to that are large amounts of caffeine, which can mask the effects of alcohol. By taking these drinks off the shelves we are saying ‘no’ to irresponsible drinking and taking steps to prevent incidents like the one that made these college students so ill.” The emergency ban apparently covers all AEDs “that combine beer, strong beer, or malt liquor with caffeine, guarana, taurine, or other similar…
According to media sources, the EU Council of Ministers’ Legal Service has expressed “strong doubts” about the feasibility of a proposal that would allow individual member states to set their own policies for regulating genetically modified (GM) crops. The opinion has reportedly raised questions about whether the legislation would violate World Trade Organization rules, especially since a GM crop ban based on ethical rather than environmental or health concerns would be difficult to uphold in European courts. An EU official has quoted the opinion, which was due to be officially presented on November 11, as saying that, “Economic arguments cannot be relied upon . . . so the obvious remaining candidate would therefore be ethical reasons.” Also referring to this “leaked” legal opinion, the Institute for Environmental Studies at the VU University Amsterdam has hailed the report as validating the views of its own biotechnology law specialist, Thijs Etty. “This…
An international panel of experts has identified food as “by far the main source of bisphenol A (BPA) exposure,” although levels of chemical in the human body are “very low” and quickly eliminated through urine. The World Health Organization (WHO) and U.N. Food and Agricultural Organization (FAO) announced the findings after more than 30 experts convened in Ottawa, Canada, to review the latest scientific data on BPA. The panel apparently concluded that BPA migrates into food from food packaging, such as plastic containers, baby bottles and coated food cans. Other BPA sources–including house dust, soil, toys, dental treatments, and thermal cash register receipts–are “of minor relevance,” according to a November 9, 2010, joint WHO/FAO press release. The panel reportedly noted, however, that “it is difficult to interpret the relevance” of recent scientific studies that have associated BPA exposure with adverse health effects, warning that “[u]ntil these associations can be confirmed,…
The Government Accountability Office (GAO) has released an 88-page report that claims better collaboration is needed among the four federal agencies overseeing live animal imports to reduce the risk of animal-related diseases coming into the United States. According to GAO, more than 1 billion live animals were imported into America from 2005 through 2008, but “gaps” in the statutory and regulatory framework could allow animal and zoonotic diseases to “emerge anywhere and spread rapidly.” GAO reviewed statutes, visited ports of entry and surveyed the Department of Health and Human Services’ Centers for Disease Control and Prevention, Department of the Interior’s Fish and Wildlife Service, Department of Agriculture’s Animal and Plant Health Inspection Service, and Department of Homeland Security’s Customs and Border Protection. The experts cited by the report identified several barriers to agency collaboration, “such as different program priorities and unclear roles and responsibilities.” GAO also found that “because each…
Mandatory sodium limits for processed foods could be 20 times more effective than voluntary reduction measures. Linda Cobiac, et al., “Cost-effectiveness of interventions to reduce dietary salt intake,” Heart, November 2010. Australian researchers evaluated the public health benefits and cost-effectiveness of four possible strategies for reducing dietary salt: (i) the current Australian program that provides incentives for food manufacturers to voluntarily reduce sodium in their processed foods, (ii) a government mandate to moderate salt in processed foods, (iii) dietary advice for people at increased risk of cardiovascular disease, and (iv) dietary advice for anyone at high risk. Writing that “dietary advice targeting individuals is not cost-effective,” the study’s authors concluded that programs which “encourage the food industry to reduce salt in processed foods are highly recommended for improving population health and reducing health sector spending in the long term.” They suggested, however, that “regulatory action from government may be needed…
A recent study has reportedly concluded that viable skin can absorb bisphenol A (BPA), raising concerns about exposure from handling BPA-laden products such as receipts. Daniel Zalko, et al., “Viable skin efficiently absorbs and metabolizes bisphenol A,” Chemosphere, October 2010. French researchers used both pig and human cultures to determine that “BPA is readily absorbed and metabolized by the skin,” which converted the substance into two conjugates known as BPA mono-glucuronide and BPA mono-sulfate. “The trans-dermal route is expected to contribute substantially to BPA exposure in human [sic], when direct contact with BPA (free monomer) occurs,” concluded the authors. The study evidently confirms earlier findings released ahead-of-print in Environmental Health Perspectives indicating cashiers had the highest urinary BPA concentrations among a sample of 389 pregnant women. According to a November 2, 2010, Science News article, University of Missouri-Columbia Professor Frederick vom Saal has described the French research as “unequivocal in showing…
Germany’s Federal Institute for Risk Assessment (BfR) recently held its Ninth Forum on Consumer Protection in Berlin, where 300 participants discussed the alleged health risks of recycled materials used in food packaging. More specifically, the meeting focused on cardboard packaging made from recycled paper, which evidently contains mineral oils used in newspaper ink that can migrate “in relevant amounts into the packaged foods.” While acknowledging that a final assessment “is not yet possible,” BfR has cited animal tests suggesting that these mineral oil residues “are deposited in the liver and lymph nodes and could damage these organs.” It has thus recommended minimizing the migration of these oils into foods. “This concerns dry foods with a large surface such as rice, semolina, corn flakes and noodles,” states the BfR press release. “As a possibility, the BfR Forum discussed the use of liner bags, for example made of aluminum coated plastics, in…
KFC franchisees have reportedly made their closing arguments before a Delaware Chancery Court in a dispute over the company’s advertising policies. They contend that 1997 amendments to the company’s corporate documents gave them the authority to propose and approve different advertising recommendations. The lawsuit was apparently filed after KFC Corp. launched an advertising campaign for grilled chicken menu offerings, which the franchisees opposed for their potential to dilute the company’s fried chicken brand. According to a news source, the franchisees argued that while they can veto funding for advertising by majority vote, this power is illusory because KFC could institute delays, thus causing a blackout that would inflict significant damage on franchisees. The company apparently countered that the franchisees do have the right to make recommendations or modifications to the company’s advertising policy and have exercised that right on several occasions. Still, the company reportedly indicated that the franchisees cannot have…
