A Florida resident has filed a putative class action lawsuit against General Mills, Inc., in federal court, alleging that its claims about Yo-Plus® yogurt violate the state’s deceptive and unfair trade practices law and constitute a breach of express warranty. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., filed March 17, 2009). Seeking to certify a class of Florida Yo-Plus® purchasers, the plaintiff alleges that the company cannot substantiate its claims that the yogurt’s trademarked “unique blend of live probiotic cultures and natural fiber,” referred to in marketing and on product labels as Optibalance™, “helps keep your digestive system right on track.” According to the complaint, the unaware consumer “is led to believe that General Mills’ blend of ‘probiotic’ bacterial strains and small amounts of fiber will, in fact, improve the digestive systems of healthy people. In fact, people’s bodies already maintain the proper balance of intestinal bacteria.” The…
Category Archives Issue 296
The day after Ronald Kuiper died, a jury reportedly awarded the former popcorn factory worker and his wife $7.55 million in litigation against one of the companies that supplied the flavorings with diacetyl used by his employer. Kuiper v. Givaudan Flavors Corp., No. 06-4009 (N.D. Iowa, verdict rendered March 12, 2009). Kuiper apparently alleged that he contracted broncholitis obliterans from his workplace exposure to the butter-flavoring chemical, and he reportedly died from complications of the disease. According to a news source, the jury deliberated for six days following the month-long trial and declined to award punitive damages. The Kuipers, who previously settled claims against other flavorings manufacturers for undisclosed amounts, alleged design defect, failure to warn and failure to test. Givaudan reportedly argued, among other matters, that Kuiper’s claims were barred by a two-year statute of limitations. See Product Liability Law 360 and Mealey’s Emerging Toxic Torts, March 13, 2009.
The U.S. Department of Health and Human Services, Department of Agriculture, and Food and Drug Administration have announced an April 7, 2009, public meeting to discuss agenda items and draft positions for the Codex Alimentarius Commission’s 37th Session of the Codex Committee on Food Labeling (CCFL) slated for May 4-8, 2009, in Calgary, Canada. The CCFL “drafts provisions on labeling applicable to all foods; considers, amends if necessary, and endorses specific provisions on labeling of draft standards, codes of practice, and guidelines prepared by other Codex committees; studies specific labeling problems assigned to it by the commission; and studies problems associated with the advertisements of food with particular reference to claims and misleading descriptions.” In particular, the U.S. agencies are seeking public input about (i) draft codex standards for food labeling; (ii) the implementation of the World Health Organization’s Global Strategy on Diet, Physical Activity and Health; (iii) guidelines for the…
The Occupational Safety and Health Administration (OSHA) has withdrawn its Advance Notice of Proposed Rulemaking (ANPRM) on Occupational Exposure to Diacetyl and Food Flavorings Containing Diacetyl so that a Small Business Advocacy Review Panel can promptly convene to study the effect such a rule would have on small businesses. According to OSHA’s notice, materials submitted before the ANPRM’s withdrawal as well as any other information submitted directly to OSHA after the withdrawal, will be placed in the public rulemaking docket and receive equal consideration as a part of the rulemaking record. Several other opportunities for stakeholders to provide information and comment during the rulemaking process will also be available. Diacetyl is a chemical used in butter flavoring for popcorn and confectionary products that has been linked to bronchiolitis obliterans, an incurable lung disease purportedly diagnosed in a number of workers at U.S. popcorn-manufacturing plants. Earlier this year, OSHA sought information…
On January 5, 2009, the Food and Drug Administration (FDA) issued a rule ordering food and drink manufacturers that color their products with cochineal extract and carmine to declare the presence of those ingredients on labels. Further details about the rule appear in issue 287 of this Update. Last week, FDA confirmed the effective date for full compliance with the rule as January 5, 2011. FDA revised its requirements for these color additives in response to reports of severe allergic reactions to food containing cochineal extract and food and cosmetics containing carmine. The colorings, derived from the dried bodies of beetles, are used in various products such as ice creams, yogurts, fruit drinks, alcoholic beverages, and candy products. They make the products pink, red or purple. The coloring agents were previously listed under “artificial color” or “artificial color added” on ingredient labels. Beginning in 2011, FDA will require foods containing…
The Food and Drug Administration (FDA) has amended its food-additive regulations to allow soy-based foods and drinks to be fortified with vitamin D. The amendment, which was prepared in response to a petition filed by Dean Foods, allows for the addition of crystalline vitamin D2—and not the resin from the vitamin—to soy beverages, soy beverage products, soy-based butter substitute spreads, soy-based cheese substitutes, and soy-based cheese substitute products. The FDA concluded, “there is a reasonable certainty that no harm will result from the use of vitamin D2 as a nutrient supplement” in the soy products in question. See Federal Register and Foodnavigator-usa.com, March 16, 2009.
The Food and Drug Administration (FDA) last week issued guidance to the food industry about the risk of Salmonella contamination posed by peanuts and peanut-derived products used as food ingredients. The guidance also recommended measures that food manufacturers can take to address that risk from their ingredient suppliers and for the products they themselves produce. The guidance recommends that manufacturers obtain their peanut-derived ingredients only from suppliers whose production processes have been demonstrated to adequately reduce the presence of Salmonella or ensure that their own manufacturing processes would adequately reduce that presence. Meanwhile, the Associated Press reported that the Peanut Corp. of America filed documents in bankruptcy court listing nearly $11.4 million in assets and debts of $4.8 million. Most of the assets will not be available to compensate consumers. Peanut Corp. filed for Chapter 7 bankruptcy in February 2009 amid growing fallout from a national Salmonella outbreak, which reportedly…
As members of the 111th Congress actively consider how to address food-safety issues and debate in committee whether splitting the Food and Drug Administration (FDA) in two would best reform federal oversight, new bills addressing food health and safety continue to be introduced. The most recent include: H.R. 1324 – Introduced March 5, 2009, by Representative Lynn Woolsey (D-Calif.), this bill would update national school nutrition standards for foods and beverages not included in school meals. The proposed legislation, with 101 co-sponsors, was referred to the House Committee on Education and Labor. H.R. 1332 – Introduced March 5, 2009, by Representative Jim Costa (D-Calif.), this measure, titled the “Safe Food Enforcement, Assessment, Standards, and Targeting Act of 2009” or “Safe FEAST Act of 2009,” would amend the Federal Food, Drug, and Cosmetic Act by strengthening FDA’s authority to inspect records during food-related emergencies, recall contaminated products, accredit food-testing laboratories, and…
In a move that has reportedly angered some industry representatives, the U.S. government has set up a working group to study how food is marketed to youth younger than age 18. Currently, food manufacturers are encouraged to abide by industry-imposed rules for food advertising to children younger than 12. The Interagency Working Group on Food Marketed to Children was announced last week with President Barack Obama’s 2009 omnibus appropriations bill. The group will examine whether the government should set standards for determining which foods are healthy and appropriate to market to youth as old as 17. A Grocery Manufacturers Association spokesperson was quoted as saying, “This proposal is completely unnecessary. Taxpayer dollars and agency time could be made much better use of. Besides, the proposal—the way it is written—not only reinvents the wheel, it does so poorly with broad, misdirected language that goes far beyond marketing to children. Too far.”…
President Barack Obama (D) has reportedly tapped former New York City Health Commissioner Margaret Hamburg to lead the Food and Drug Administration (FDA) and Baltimore Health Commissioner Joshua Sharfstein to act as her deputy. A bioterrorism expert and physician, Hamburg previously served as an assistant health secretary in the Clinton administration and helped decrease the rate of drug-resistant tuberculosis during her tenure at the New York City Health Department. Her selection has drawn praise from consumer watchdogs, food safety advocates and medical groups such as the American Public Health Association, which said both nominations reflect Obama’s “commitment to protecting consumer safety.” “You’ve got an organization that’s demoralized and one that really wants to enhance its scientific integrity,” an association spokesperson was quoted as saying. “[Hamburg’s] all about integrity and science . . . She can be tough when she needs to be, and she’s going to need to be real…
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