The Third Circuit Court of Appeals has determined that federal food labeling law does not preempt the state law-based claims filed by a consumer who challenged Snapple’s designation of beverages containing high fructose corn syrup (HFCS) as “natural.” Holk v. Snapple Beverage Corp., No. 08-3060 (3d Cir., decided August 12, 2009). The appeals court reversed a lower court ruling dismissing the claims on the basis of implied preemption. The complaint, originally filed in state court, but removed to federal court in 2007 under the Class Action Fairness Act, initially asserted that Snapple products were not “All Natural” because they contained HFCS; they were not “Made from the Best Stuff on Earth”; and Snapple falsely labeled some beverages, naming them after fruit-juice varieties that were not actually in the beverages. The plaintiff alleged unjust enrichment and common law restitution, breach of express and implied warranties and violations of the New Jersey…
Category Archives Issue 315
According to Louisiana and Arkansas university researchers, entrapping betacarotene with nanoparticles could provide a way to use “natural” ingredients as food colorants. Carlos Astete, et al., “Ca2+ Cross-Linked Alginic Acid Nanoparticles for Solubilization of Lipophilic Natural Colorants,” Journal of Agricultural & Food Chemistry, August 3, 2009. The research was undertaken in response to consumer concerns about the use of synthetic ingredients in food products. Using various production methods, solvents and nanoparticle sizes, the scientists found a method that produced substances which could readily be incorporated in an industrial scale process. Simply changing nanostructure concentration could, according to one of the authors, allow color changes “from dark orange to yellow.”
An Italian study has reportedly found that the consumption of artificial sweeteners, including saccharin and aspartame, does not increase the risk of developing gastric, pancreatic or endometrial cancers. Cristina Bosetti, et al., “Artificial Sweeteners and the Risk of Gastric, Pancreatic, and Endometrial Cancers in Italy,” Cancer Epidemiology Biomarkers & Prevention (August 1, 2009). Classifying participants as either users or non-users of artificial sweeteners, researchers compared data from 230 people with stomach cancer and 547 healthy controls; 326 people with pancreatic cancer and 652 healthy controls; and 454 people with endometrial cancer and 908 healthy controls. The results confirmed “the absence of an adverse effect of low-calorie sweetener (including aspartame) consumption on the risk of common neoplasms in the Italian population.” Although limited to Italy, this conclusion apparently supports the findings of a National Cancer Institute study involving 285,079 men and 188,905 women that found no statistical link between aspartame and leukemia,…
A recent study has reportedly claimed that the average American woman enrolled in the federal Supplemental Nutrition Assistance Program (SNAP) is 5.8 pounds heavier than someone of the same socioeconomic background who does not receive food stamps. Jay L. Zagorsky, et al., “Does the U.S. Food Stamp Program Contribute to Adult Weight Gain?”, Economics & Human Biology (July 2009). According to the researchers, “this association does not prove that the Food Stamp Program causes weight gain,” but may show that increased income, either from cash or food stamp coupons, increases food spending in general. “However, the estimates indicate that food demand is inelastic and increased food spending does not necessarily mean increased caloric intake. Even so, the program could still contribute to weight gain since people tend to overconsume products that are free,” stated the study authors. Noting that the average recipient receives approximately $80 per month in food stamp…
“This is Salmonella’s world. We’re just living in it,” claims science writer Karen Kaplan of The Los Angeles Times in this article exploring the evolution of the deadly bug responsible for recent pistachio and peanut recalls. “The bacterium appeared on the planet millions of years before humans, and scientists are certain it will outlast us too. It’s practically guaranteed that Salmonella will keep finding its way into the food supply despite the best efforts of producers and regulators.” Kaplan writes that the rise of Salmonella is due in large part to the industrialization of agriculture and food processing, and that eating trends also play a role. She quotes Robert Tauxe, deputy director of the Centers for Disease Control and Prevention’s division of food-borne diseases, as saying that time-strapped Americans are consuming more preprocessed meals, which means that food has had more opportunity to be contaminated by handlers, machinery and other ingredients.…
The Chicago Tribune has released the results of a preliminary 2008 U.S. Department of Agriculture (USDA) study that purportedly found “more than 50 pesticide compounds . . . on domestic and imported peaches headed for U.S. stores.” According to the August 12, 2009, article, “Five of the compounds exceeded the limits set by the Environmental Protection Agency [EPA], and six of the pesticides present are not approved for use on peaches in the United States.” USDA reportedly sampled washed conventional peaches from more than 700 sites, including Chile, South Carolina and Georgia, as part of its Pesticide Data Program, which does not enforce violations but uses them to identify problematic practices. “Although most pesticides in peaches were at levels well below EPA tolerances,” states the Tribune, “some scientists and activists remain concerned about even low-level exposure, especially to [sic] pregnant women and children.” The newspaper also commissioned its own test…
A California state judge has reportedly issued a tentative ruling on the styrene industry’s request to enjoin Proposition 65 (Prop. 65) regulators from listing styrene as a chemical known to the state to cause cancer. Styrene Info. & Research Ctr. v. OEHHA, No. 09-53089 (Cal. Super. Ct., Sacramento Cty., decided August 12, 2009). Further details about the litigation appear in issue 313 of this Update. According to a news source, Superior Court Judge Shelleyanne Chang found no “known” evidence that styrene is a carcinogen and that the designation would likely have a devastating and stigmatizing effect on the product’s use. Widely used in food packaging, styrene plastics are apparently crucial to the transportation and sale of strawberries, raspberries and blueberries, state industries worth $1.6 billion. California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed listing styrene as a Prop. 65 substance, which would require public warnings, based on “possibly…
The Eleventh Circuit Court of Appeals has determined that a district court did not abuse its discretion by deciding that the Alien Tort Claims Act and Torture Victim Protection Act claims of seven Guatemalan banana plantation workers would best be heard in a Guatemalan court. Aldana v. Del Monte Fresh Produce N.A., Inc., No 07-15471 (11th Cir., decided August 13, 2009). The litigation arose from a 1999 labor dispute in Guatemala during which a number of trade union workers were allegedly roughed up by a private security force purportedly hired by defendant’s subsidiary, which owned the large banana plantation involved in the dispute. A circuit court panel majority agreed with the district court’s forum non conveniens analysis, ruling that it did not err by giving preclusive effect to prior state court findings on these issues and in finding that Guatemala’s courts were adequate and that “the plaintiffs’ choice of forum…
After Food and Drug Administration (FDA) investigators found rodent infestation, “insanitary” conditions, poor employee hygiene, and violations of hazard analysis critical control point regulations at a food plant in Louisiana, it dispatched U.S. Marshals to seize tuna salad sandwiches and other food products, totaling more than $72,000 in value. While no illnesses have apparently been linked to consumption of the sandwiches produced by the Bearden Sandwich Company, Inc., the FDA has reportedly pledged to act “swiftly and aggressively” against processors and manufacturers that do not comply with food safety rules. According to an agency spokesperson, “When FDA investigators find violations inside a company’s facility, we will do what is necessary to keep insanitary and potentially harmful products out of consumers’ hands.” See FDA News Release, August 7, 2009.
The Food and Drug Administration (FDA) has announced a new warning-letter system to notify food companies of safety regulation violations. Scheduled to begin on September 15, 2009, the system stems from an effort to speed up the process from the time a company receives an “FDA 483” inspection report to the issuance of a warning letter. It allows companies 15 working days to respond to the 483 form, and if they do not respond during that time, FDA will send a warning letter. If FDA does receive a response in that time, it will “conduct a detailed review of the response before determining whether to send a warning letter.” According to a Federal Register notice, many companies respond in writing once they get the 483 report by describing completed or ongoing corrective actions or promise of future corrections. “In fact, some inspected establishments submit multiple responses to FDA, sometimes over…
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