President Barack Obama (D) has released a memorandum to the heads of executive departments and agencies instructing them to “include statements of preemption in regulations only when such statements have a sufficient legal basis.” Under the Bush administration, a number of health and safety agencies, including the Food and Drug Administration, often placed such statements in a regulation’s preamble, attempting to prevent those injured by the consumer products subject to the regulation from bringing state-law based product-liability litigation against manufacturers. Acknowledging the previous practice, the memorandum indicates that its purpose “is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have…
Posts By Shook, Hardy & Bacon L.L.P.
The Center for Science in the Public Interest (CSPI) has launched a campaign to halve the amount of sodium in prepackaged foods and restaurant meals within 10 years. CSPI Executive Director Michael Jacobson this week presented the group’s case to the U.S. Senate Finance Committee, claiming that “Because it raises blood pressure and increases the risk of hypertension, heart attacks and kidney disease, salt is arguably the most harmful ingredient in our food supply.” According to Jacobson, “Gradually reducing sodium levels in packaged and restaurant foods by half would ultimately save an estimated 150,000 lives and billions of dollars annually.” Jacobson’s testimony underscored a concurrent CSPI exposé on restaurant meals that contain more than 4,000 mg of sodium per plate. The consumer advocacy group apparently examined meals at 17 restaurant chains, finding that “85 out of 102 meals had more than a day’s worth of sodium, and some had more…
This student-authored case note discusses the obesity-related class litigation filed in 2002 against McDonald’s Corp. involving named plaintiffs who are urban minority youths. The author contends that, while the proposed class definition includes a much broader population of New York residents, framing such litigation to connect obesity with socioeconomic status and race “could have been a valuable opportunity to reframe the obesity issue to highlight its effect on low-income urban minority youth.” According to the article, this reframing could have garnered more positive media attention, which could have spurred the environmental changes that the author believes are needed to combat obesity in this population. The article briefly discusses how “tobacco-style” lawsuits can be part of an effective public health strategy, noting “as was the case with tobacco litigation, if the public becomes convinced that urban minority youth are being misled or manipulated by the food industry, then the politics of fast…
Concerned that the United States does not plan to make any changes to its country-of-origin labeling (COOL) rules for meats, fresh produce and nuts, Canada has apparently decided to move forward with a complaint it originally filed in December 2008 with the World Trade Organization (WTO). According to Canada’s trade minister, “Recent instructions from the U.S. Secretary of Agriculture encouraging the U.S. industry to use very strict labeling practices have removed flexibility previously envisioned in the legislation and this affects the ability of our cattle and hog exporters to compete fairly in the U.S. market.” U.S. imports of Canadian cattle reportedly dropped 32 percent in the first two months of 2009 compared with the same period in 2008, and hog imports have fallen 40 percent. The reductions are apparently blamed, in part, on COOL requirements that U.S. plants segregate and separately label imported products. Canadian producers also claim that the…
As anticipated, federal prosecutors have reportedly filed a motion to dismiss a number of charges of aiding and abetting aggravated identity theft against a Postville, Iowa, slaughterhouse, its former executive and a former manager. The action was taken after the U.S. Supreme Court ruled that a conviction under the identity theft law requires a showing that those presenting false identification documents to employers knew they belonged to another real person. More information about the case and its effect on charges arising from the immigration raids that occurred in Iowa in 2008 appear in issue 303 of this Update. According to a news source, prosecutors knew they would be unable to prove that the undocumented immigrants who worked at an Agriprocessors, Inc. facility knowingly used identification papers belonging to others, and thus, they would be unable to prove that the managers and executives were guilty of aiding and abetting. After nearly…
The Vermont Supreme Court has refused to expand liability to allow the recovery of non-economic damages in litigation involving the death of pets. Goodby v. Vetpharm, Inc., No. 2009 VT 52 (Vt., decided May 8, 2009). While the issue arose in a case involving the alleged negligence of a veterinarian and pharmaceutical company, the question whether pain and suffering damages are available to pet owners also came to the fore when melamine-contaminated pet food injured or killed cats and dogs throughout the United States and Canada in 2007. Shook, Hardy & Bacon Public Policy Partner Victor Schwartz and Associate Phil Goldberg submitted an amicus curiae brief to the court on behalf of the Animal Health Institute, Federation of Dog Clubs, American Kennel Club, and Pet Industry Joint Advisory Council, analyzing the legal and public policy implications of allowing such damages. The brief explained to the court how this proposed liability would depart from hundreds…
The Tenth Circuit Court of Appeals has affirmed a lower court’s decision not to enjoin Tyson Foods, Inc. from using poultry litter as fertilizer. Oklahoma v. Tyson Foods, Inc., No. 08-5154 (10th Cir., decided May 13, 2009). Oklahoma’s attorney general sought a preliminary injunction to halt the practice, arguing that poultry litter contains E. coli, Salmonella and Campylobacter and that its use in the Illinois River Watershed in Arkansas and Oklahoma caused fecal bacterial contamination of the watershed’s waterways, which are popular for water recreation and supply drinking water for local residents. Tyson responded that the bacteria come from multiple sources including wildlife, various farm animals and humans. The company also noted that the way its farmers treat poultry litter kills any bacteria and that the watershed’s bacteria levels “do not correlate to poultry farming or litter application, but rather correspond to areas of cattle farming and human activity.” The…
Massachusetts has adopted tough rules requiring chain restaurants with at least 20 outlets in the state to prominently display calorie information on big boards dangling from ceilings, on printed menus and at drive-through windows. The rule, unanimously adopted by the Massachusetts Public Health Council, will take effect November 1, 2010, and reportedly affects about 50 chain restaurants with nearly 5,300 locations in the state. “This is a major step in the right direction in fighting the obesity epidemic in our state,” Massachusetts Department of Public Health Commissioner John Auerbach was quoted as saying. “We know that providing this information will help our residents make more informed choices.” More than a dozen states are apparently considering similar rules. California passed a similar law in fall 2008, but its regulations do not extend to drive-through restaurants. New York City began enforcing a calorie-posting rule in July 2008 for restaurants with more than…
Minnesota and Chicago have reportedly become the first state and municipality to prohibit the use of bisphenol A (BPA) in plastic food and beverage containers intended for children ages 3 or younger. Minnesota Governor Tim Pawlenty (R) recently signed legislation (H.F. 326) that would prohibit the sale of these products in the state as of January 2010, although manufacturers can sell existing stock until early 2011. Citing a failure by federal regulators to address this issue, the Chicago City Council has also approved a similar proposal that would take effect in 2010. Some research has purportedly linked BPA to developmental health problems, breast and prostate cancer in laboratory animals, but the Food and Drug Administration (FDA) previously ruled that the chemical does not pose any danger to children when consumed in minimal amounts. “The FDA continues to be very slow about taking any action on BPA,” stated Chicago Alderman Manuel…
The Environmental Protection Agency (EPA) has signed a final rule that will prohibit carbofuran residue in fruits and vegetables. The agency is also canceling all existing carbofuran registrations. Effective January 1, 2010, the rule will apply to both domestic and imported produce, including alfalfa, barley, beets, corn, cranberries, cucumbers, grapes, peppers, rice, soybeans, and wheat. According to the agency, “carbofuran products pose an unreasonable risk to man and the environment which outweighs the benefits of continued use, and therefore all uses must be canceled.” EPA has been investigating the insecticide, sold under the brand name Furadan®, for several years. Its granular form was banned in the mid-1990s because it was blamed for killing millions of migratory birds. EPA claims that the pesticide “can overstimulate the nervous system, causing nausea, dizziness, confusion and, at very high exposures, respiratory paralysis and death.” The rule has been forwarded to the Federal Register for publication.…
