Federal agents reportedly raided a major organic fertilizer producer in Bakersfield, California, over concerns that it was using a synthetic nitrogen, which is banned from organic farms. Port Organic Products Ltd. is believed to produce up to half the liquid fertilizer used on the state’s organic farms. The raid follows by about a month press reports that state regulators quietly pulled the product of another fertilizer producer, with about a third of California’s market share, from the organic market in November 2007 for similar problems. Synthetic nitrogen is apparently cheaper than approved nitrogen sources such as ground-up fish and chicken feathers, and it is hard to detect. No charges have been filed against Port Organic, and federal officials were reportedly not commenting on their investigation, but a county environmental health services department evidently imposed fines on the company for improperly storing thousands of gallons of aqua ammonia, a common synthetic nitrogen…
Posts By Shook, Hardy & Bacon L.L.P.
Food litigator William Marler discusses the 2006 spinach E. coli outbreak in this article, which provides an overview of the issues that plaintiffs’ lawyers should consider when they represent clients allegedly sickened by contaminated fresh produce. Among the issues flagged are (i) which entities are liable under a strict products liability scheme; (ii) what effect insurance and indemnity agreements will have on “the all-important questions of who is going to pay”; and (iii) whether the industry’s or individual corporation’s knowledge of the risk gives rise to the availability of punitive damages. The article concludes with a brief consideration of how the industry is regulated and why foodborne pathogens continue to sicken consumers. Marler argues that “the most expedient step in preventing another deadly foodborne illness outbreak like the 2006 Dole spinach outbreak is to push for greater corporate responsibility regarding the oversight of food producers. The lives of American consumers depend…
A Massachusetts woman has filed a putative class action in federal court against Gerber Products Co., alleging that its packaging misrepresented the quality of its Fruit Juice Snacks®, which “were virtually nothing more than candy with a touch of vitamin C.” Wiley v. Gerber Prods. Co., No. 09-10099 (D. Mass, filed January 22, 2009). She seeks to represent a class of all consumers who purchased the product before Gerber changed its packaging to indicate that the product was a “treat” rather than a “snack.” Alleging violations of a Massachusetts consumer protection law, intentional and negligent misrepresentation, breach of express and implied warranties, and unjust enrichment, the plaintiff requests class certification, a declaration that Gerber’s acts and practices are unlawful, a permanent injunction, corrective advertising, and damages of $25 per violation amounting to more than $5 million, refunds, double or treble damages, attorney’s fees, and costs. According to the complaint, package…
POM Wonderful LLC has reportedly brought false advertising and unfair competition claims in federal court against Welch Foods Inc. for marketing a product with little pomegranate juice as a “white grape and pomegranate” juice. POM Wonderful LLC v. Welch Foods Inc., No. 09-00567 (C.D. Cal., filed January 23, 2009). According to a news source, POM Wonderful has built a multimillion-dollar business by making and marketing the health benefits of a pomegranate juice-based product line. The company alleges that Welch has taken advantage of its success by developing an intentionally confusing and misleading product and implying “that its product is of the same composition and quality of blended pomegranate juices such as plaintiff’s blended pomegranate juices, when in fact Welch’s has substituted much of the valuable and beneficial substance of pomegranate juice with economically and nutritionally inferior juices such as apple.” POM Wonderful apparently alleges that Welch has violated the false advertising…
Food litigator William Marler has filed a second lawsuit against the Peanut Corp. of America (PCA) on behalf of a California family whose 3-year-old son allegedly fell ill and was hospitalized after eating Salmonella-contaminated peanut butter cracker sandwiches made with a PCA peanut butter product. Trone v. Peanut Corp. of Am., No. 09-418 (N.D. Cal., filed January 28, 2009). The outbreak, which has reportedly sickened more than 500 people across the United States and contributed to eight deaths, has led to one of the largest food recalls in the nation’s history. PCA expanded its recall from peanut butter and peanut paste to all peanuts and peanut products, including whole peanuts (dried, roasted or raw), granulated peanuts and peanut meal, processed in its Blakely, Georgia, facility since January 1, 2007. According to the PCA recall notice, the company sold its recalled products to institutions, food service industries and private label food companies in…
The D.C. Circuit Court of Appeals has reportedly denied a Whole Foods Market, Inc. petition that sought to stop the Federal Trade Commission’s (FTC) antitrust proceedings against the company’s merger with Wild Oats Markets, Inc. The FTC’s administrative trial is scheduled to begin April 6, 2009, and Whole Foods contends that the commission has pre-judged the outcome. According to a Whole Foods spokesperson, “There is no question our due process and equal protection rights have been violated and we intend to pursue this case until we can get a hearing in a federal court about those violations.” According to a news source, Whole Foods is considering reframing and refiling its lawsuit. See Dow Jones Newswires, January 23, 2009.
FDA is seeking nominations for several public advisory committees, including the Transmissible Spongiform Encephalopathies Advisory Committee. This committee evaluates “available scientific data concerning the safety of products which may be at risk for transmission of spongiform encephalopathies having an impact on the public health,” according to FDA. Nominees should have experience in clinical and administrative medicine, hematology, virology, neurovirology, infectious diseases, immunology, transfusion medicine, surgery, internal medicine, biochemistry, biostatistics, epidemiology, biological and physical sciences, sociology/ethics, or other related professions. FDA will accept nominations until it fills all current and upcoming vacancies on the committee. See Federal Register, January 29, 2009.
USDA, the Food and Drug Administration and the Office of the Undersecretary for Food Safety have announced a February 10, 2009, public meeting to develop draft positions on agenda items for the 41st Session of the Codex Committee on Food Additives (CCFA) slated for March 16-20, 2009, in Shanghai, China. Part of the Codex Alimentarius Commission established in 1963 by the Food and Agriculture Organization and World Health Organization, CCFA (i) sets maximum levels for individual food additives; (ii) prepares priority lists of food additives for risk assessment by FAO and WHO experts; (iii) assigns functional classes to food additives; (iv) recommends specifications of identity and purity for food additives; (v) considers methods of analysis; and (vi) considers standards for related subjects such as food additive labeling. Specific agenda items for the session also include the Codex General Standard for Food Additives and the scope of its food categories. The…
The Agricultural Marketing Service (AMS) has issued a voluntary standard that livestock producers can use to verify “naturally raised” marketing claims with USDA. The standard apparently took into account more than 44,000 public comments from consumers, veterinarians, trade and professional organizations, national organic associations, consumer, agriculture and animal advocates, and retail and meat companies. AMS concurred with the majority of comments requesting “that the three core criteria proposed (animals raised without growth promotants and antibiotics and have never been fed mammalian or avian byproducts) should be a part of a naturally raised marketing claim standard,” but declined to further narrow the scope of the standard because the agency felt additional restriction would limit its usefulness. “A number of livestock producers make claims associated with production practices in order to distinguish their products in the marketplace,” according to AMS. “This voluntary standard will allow livestock producers to utilize AMS’ voluntary, third…
The Center for Science in the Public Interest (CSPI) has criticized the National Collegiate Athletic Association’s (NCAA’s) policy on alcohol marketing during sanctioned events, claiming that beer was the “second most-advertised product” in the Final Four basketball tournament. CSPI allegedly found that beer promotions constituted 12 percent of all advertisements during the Final Four, but only 6 percent of those featured during the Bowl Championship Series, where “beer was the seventh most-advertised product.” The consumer watchdog has purportedly sent a letter to NCAA President Myles Brands, reiterating its long-standing request for NCAA to prohibit all alcohol advertising during its games. In addition, CSPI noted that hundreds of college presidents, athletic directors and coaches last year petitioned the association to further restrict its alcohol marketing policies. “The NCAA lags far behind other organizations when it comes to protecting its young audience from beer ads,” stated CSPI’s George Hacker. See CSPI Press…
