A federal court in Washington recently approved a class action settlement in a case filed against egg farmers who allegedly engaged in unfair, deceptive and improper conduct in the marketing and sale of omega-3 fortified eggs. Schneider v. Wilcox Farms, Inc., No. 07-01160 (W.D. Wash., filed January 12, 2009). As we reported in issue 226 of this Update, the complaint alleged that the eggs the defendant marketed and sold contained omega-3 fatty acids “without proven cardiovascular benefits” and charged a premium for them, while taking advantage of consumers’ limited knowledge about different kinds of omega-3 and “artificially inflating the perceived amount of beneficial omega-3 fatty acids” in their product. Without conceding liability, the defendants agreed to pay $2,500 to each of the two named plaintiffs and attorney’s fees of $160,000. The order dismisses the plaintiffs’ claims with prejudice and bars members of the settlement class, defined as “[a]ll persons who…
Posts By Shook, Hardy & Bacon L.L.P.
Seeking “substantial damages,” a company that makes wild bird food has filed a lawsuit against a supplier that allegedly sold it peanut by-products originating from the Georgia facility linked to the Salmonella contamination outbreak. The Scotts Co., LLC v. Cereal Byproducts Co., No. 09-108 (S.D. Ohio, filed February 17, 2009). According to the complaint, the defendant sold and shipped peanut by-products to the plaintiff in December 2008 and January 2009, after it was known that the outbreak originated in the Blakely, Georgia, facility owned and operated by the Peanut Corp. of America (PCA), and repeatedly “made false representations” that the by-products did not come from a potentially contaminated PCA facility. The plaintiff was allegedly forced to recall its suet wild bird food products and incurred unspecified costs and injury to goodwill. The complaint alleges breach of contract, negligent misrepresentation and violations of Ohio’s deceptive trade practices law.
A putative class action filed in a California federal court against Snapple Beverage Corp. alleges that the company misleads consumers by labeling as “All Natural” products containing high fructose corn syrup (HFCS) and using the names of fruits for some products that “do not contain any significant amount of the fruit listed in the product’s name.” Von Koenig v. Snapple Beverage Corp., No. 09-00337 (E.D. Cal., filed March 4, 2009). The named plaintiff seeks to certify two subclasses of California consumers “to redress Defendant’s deceptive, misleading and untrue advertising and unlawful, unfair and fraudulent business acts and practices.” One subclass would involve those who purchased the company’s “All Natural Products” that contained HFCS; the other would include those who purchased “Fruit Products . . . which included the name or picture of a fruit in the product name or label but which did not contain a substantial amount of that…
California consumers have filed a putative class action against Van’s International Foods and retailers Whole Foods Market California, Inc., Trader Joe’s Co., and Costco Wholesale Co., alleging that Van’s frozen waffles did not accurately state the calorie and nutrient content throughout 2007 and into 2008. Hodes v. Van’s Int’l Foods, No. 09-01530 (C.D. Cal., filed March 4, 2009). According to the complaint, which seeks certification of a nationwide class, the sale in late 2006 of the company that made Van’s frozen waffles involved a change in personnel that required “reverse engineering the recipes for Van’s existing product lines.” That process allegedly resulted in findings that the nutritional information on the product packaging “contained numerous substantial inaccuracies.” The calorie, fat, sodium, carbohydrates, calcium, iron, and fiber content listed purportedly varied by 20 to 100 percent or more from the actual nutritional values. The plaintiffs allege that the company continued to “distribute…
Two recent studies have reportedly examined the impact of location on the accessibility and quality of healthy food. Manuel Franco, et al., “Availability of Health Foods and Dietary Patterns: The Multi-Ethnic Study of Atherosclerosis,” American Journal of Clinical Nutrition, March 2009. Manuel Franco, et al., “Neighborhood Characteristics and Availability of Healthy Foods in Baltimore,” American Journal of Preventative Medicine, December 2008. Researchers with the Johns Hopkins Bloomberg School of Public Health, the University of Texas, and the University of Michigan apparently found that approximately 46 percent of lower-income neighborhoods in Baltimore City and Baltimore County, Maryland, had a low availability of fresh fruits and vegetables, skim milk, and whole wheat bread. The studies relied on information gleaned from 759 participants in the Multi-Ethnic Study of Atherosclerosis (MESA) and a systematic survey of 159 neighborhoods and 226 neighborhood stores in the Baltimore area. “Previous studies have suggested that race and income are…
Relying on the DSM-IV criteria for substance dependence and other substance use disorders, researchers have hypothesized that the over-consumption of refined foods can be described as an addiction that “could account for the global epidemic of obesity and other metabolic disorders.” J.R. Ifland, et al., “Refined Food Addiction: A Classic Substance Use Disorder,” Medical Hypotheses (2009). They match the statements obtained from obese people involved in a clinical observation study with substance dependence criteria such as progressive use over time, withdrawal symptoms, use more than intended, and tried to cut back, and show how “reports from self-identified food addicts seem to comprise behaviors that conform to the DSM-IV criteria. The pathology of behavior and the elements of loss control and distress that are prevalent in other addictions also appear in this qualitative data.” While calling for further empirical research, the article also cites animal research and obesity literature as additional…
A new study from the Connecticut Department of Health has challenged a recent Food and Drug Administration (FDA) draft assessment weighing the benefits of fish consumption against the risks associated with mercury exposure. Gary L. Ginsberg and Brian F. Toal, “Quantitative Approach for Incorporating Methylmercury Risks and Omega-3 Fatty Acid Benefits in Developing Species-Specific Fish Consumption Advice,” Environmental Health Perspectives, February 2009. FDA had concluded that consumers may derive greater benefits from the lean protein, omega-3 oils and minerals in fish if they exceed the current safety threshold set at 12 ounces of fish per week. But the Environmental Protection Agency (EPA) and other groups have since criticized this assessment for “serious scientific flaws,” urging consumers to abide by the safety standards currently recommended by both agencies. Meanwhile, the Connecticut Department of Health study has expanded on the FDA study by identifying some fish species, such as swordfish and shark,…
This article explores recent nanotechnology innovations designed to “extend food shelf life, add health benefits, impact flavor or even signal bacteria contamination,” likening current public concern to the mishandled controversy over genetically modified crops. According to the article, “the top ten reasons why we should continue the conversation about using nanotechnology in food” include cutting-edge devices that could (i) signal contamination; (ii) provide antimicrobial packaging; (iii) improve food storage; (iv) enhance nutrient delivery; (v) produce environmentally friendly products; (vi) reduce pesticide use; (vii) track brands and products; (viii) improve texture; (ix) boost flavor profiles; and (x) identify and eliminate bacteria. The article also suggests greater transparency in research and development to assuage any consumer trepidation about nanoparticles in food. “The security intended to deter competitors from stealing ideas can also make identifying potential harm more difficult for the regulatory agencies trying to manage risks and create law for this emerging…
The Wall Street Journal reports that scientists in New Zealand are studying ways to keep sheep and other ruminants from belching methane when they eat and regurgitate grass. Methane is apparently a significant contributor to greenhouse gases, and researchers currently believe that livestock is more responsible for greenhouse gas emissions than cars. Among the approaches being considered to reduce belching incidence is to change the animals’ diets, feed them various chemicals or even breed new sheep. A livestock expert from Massey University reportedly acknowledged that “[a] lot of people think we’re insane,” but as awareness of the problem has grown, governments around the world are looking for ways to address it. Farmers, reportedly skeptical of environmental concerns, worry that regulatory agencies will eventually tax “bovine belches,” and face activist campaigns to decrease meat consumption in the name of slowing climate change. See The Wall Street Journal, February 26, 2008.
The district court judge to whom this obesity-related litigation was reassigned in 2008 has dismissed motions to compel filed by plaintiffs and defendants, but has given the parties leave to renew after the court rules on motions for class certification. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., filed Sept. 30, 2002). Judge Robert Sweet recused himself from the proceedings following the pre-trial conference, held April 9, 2008, and the matter was reassigned to Judge Sidney Stein in May. The plaintiffs, a putative class of obese and overweight teens, alleged that the fast-food company misled them with deceptive ads. They are seeking damages for obesity-related health problems. Information about the lawsuit has periodically appeared in this Update since it was filed in 2002. It has been appealed twice to the Second Circuit Court of Appeals, its issues have been narrowed, and it has been followed closely by consumer advocates and the food…
