The industry newspaper Feedstuffs has profiled Shook, Hardy & Bacon’s Agribusiness & Food Safety Practice in a June 7, 2010, special report on supply chain management and front-of-package (FOP) labeling. Feedstuffs writer Rod Smith interviewed attorneys Mark Anstoetter, Christopher McDonald, Madeleine McDonough, and Sarah Sunday about the firm’s litigation background and “considerable expertise in areas critical to the food supply chain, like agroterrorism/crisis management, biotechnology, environmental sustainability, food safety and compliance, legislative and regulatory work.” The article particularly notes the arsenal of engineers, biologists, toxicologists, and other professionals who track these issues on behalf of clients at every link in the food supply chain. “[W]e attempt to help them manage risk from the time a food product is produced until it’s consumed,” McDonough was quoted as saying. “We connect all the dots—all the expertise.” Sunday discussed regulatory developments in FOP labeling, which has recently come under Food and Drug Administration…
Category Archives Issue 352
The man who authors The Perishable Pundit blog warns in this article that food safety legislation currently pending in Congress that would give the Food and Drug Administration (FDA) mandatory recall authority fails to address the issues that could have a real impact on addressing the problem of food contamination. He argues that absolute food safety is an unattainable goal given the vagaries of nature and the extreme and costly measures that producers would have to undertake to stop pathogens from entering the system. He sets forth a six-point plan to improve the government’s approach to food safety: (i) “Switch to a Negligence Standard from a Strict Liability Standard, and Switch Primary Liability to the Trade Buyer”—Prevor claims this would give producers the incentive to invest in best practices and force buyers, with “a whole new interest in food safety,” a reason to pay more for the safest products; (ii)…
Consumers Union (CU) has issued the results of its investigation into protein drinks, concluding that many products are at best superfluous and at worst unsafe. Published in the July 2010 edition of Consumer Reports, the findings allegedly support the watchdog’s position that Food and Drug Administration (FDA) oversight under the Dietary Supplement Health and Education Act “is inadequate to ensure that protein drinks and other dietary supplements are consistently low in heavy metals and other contaminants.” CU apparently conducted outside laboratory tests on 15 protein powders and drinks purchased in the New York-metro area, in addition to reviewing government documents and interviewing health experts and consumers. According to CU, “All drinks in our tests had at least one sample containing one or more of the following contaminants: arsenic, cadmium, lead, and mercury.” In three cases, consumers who drank more than three servings per day purportedly risked exceeding the U.S. Pharmacopeia’s…
Public health attorney and author Michele Simon has authored an article that calls disingenuous at least one food company’s promise to support first lady Michelle Obama’s Let’s Move campaign to end childhood obesity. Simon targets PepsiCo, which has publicly supported the campaign and also makes sweetened beverages, energy drinks and salty snack foods. The company’s CEO has reportedly indicated that it is investing in new sweeteners and salt-reduction technologies to improve its products. According to Simon, this means “the company is hard at work trying to engineer healthy Cheetos.” She concludes, “PepsiCo makes processed food, which is no basis for proper diet in any culture. Nature provides true nourishment in the form of whole grains, fruits, and vegetables, and no corporate mantra can improve on that.” See AlterNet, June 2, 2010.
A plaintiffs’ firm has announced a $25 million partial settlement in an antitrust class action “brought on behalf of direct purchasers of shell eggs and egg products.” In re: Processed Eggs Antitrust Litigation, MDL No. 2002 (E.D. Pa.). According to Hausfeld LLP, plaintiffs alleged “a near industry-wide, price-fixing conspiracy among egg farmers which raised the price of shell eggs and egg products in violation of the Sherman Antitrust Act.” The lawsuit specifically claimed that the United Egg Producers, United States Egg Marketers and other trade associations coordinated a conspiracy “to restrict egg supply through cage space requirements, as well as coordinated molting schedules and hen reductions, and exported eggs at a loss in order to reduce domestic supplies and raise prices.” The three settling defendants—Land O’Lakes, Inc., Moark, LLC, and Norco Ranch Inc.—have reportedly agreed “to provide significant cooperation to the plaintiffs as they pursue their claims against the remaining, non-settling…
A Missouri resident has filed a complaint in federal court against Kraft Foods Inc., alleging that it has been marking its Kool-Aid® and Country Time Lemonade® drink mix packages with the U.S. patent numbers for container patents that expired in April 2008. Brown v. Kraft Foods Inc., No. 10-1007 (E.D. Mo., filed June 1, 2010). Claiming that the marking violates 35 U.S.C. § 292, the plaintiff seeks injunctive relief, “a civil monetary fine of $500 per false marking offense,” costs, attorney’s fees, and interest. This litigation is one of a recent crop of false marking lawsuits to which the Federal Circuit Court of Appeals apparently opened the door when it ruled that the penalty could be imposed under the law on a per unit basis. Shook, Partner Peter Strand is focusing on false marking issues in his May and June IpQ newsletters. The May issue can be accessed here.
The multidistrict litigation (MDL) court before which cases alleging a failure to disclose the possible harmful effects of plastic bottles containing bisphenol A (BPA) have been consolidated for pretrial proceedings has granted in part and denied in part the plaintiffs’ discovery motion. In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., order entered May 26, 2010). The plaintiffs apparently sought to compel the disclosure of information relating to products other than plastic bottles, such as “plastic eating utensils, plastic plates and other food contact items,” and to non-health related information from more than five years before the lawsuit was filed. The court determined that it was too late to amend the complaint to include the manufacturers of the additional products, emphasizing that “this case was not intended to—and will not—become an all-encompassing ‘BPA case.’” The court also found that the burden on defendants of complying with these…
A federal magistrate in New York has recommended that the district court deny the class certification motion filed by plaintiffs who allege either personal or economic injury from the purchase of frozen ground beef products purportedly tainted with E. coli. Patton v. Topps Meat Co., No. 07-654 (W.D.N.Y., recommendation entered May 27, 2010). The defendants include the meat processor and a number of retailers, and the claims are based on a 2007 recall involving more than 20 million pounds of ground beef. Forty cases of E. coli infection in eight states were allegedly traced to the product. The plaintiffs sought to certify two nationwide classes of those who consumed the product and have personal injury claims and those who purchased the products subject to the recall and allege economic losses. Because specific causation, that is, “whether the contaminated meat caused the personal injuries of the individual class members,” would require an…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) recently announced that it is withdrawing a regulatory proposal to amend several provisions of the Proposition 65 (Prop. 65) implementing regulations that establish procedures for calculating “safe harbor” levels for listed chemicals. The public comment period on the proposal closed May 28, 2010. According to OEHHA, “significant changes will be made to the proposal,” thus it is being withdrawn. Chemicals on the Prop. 65 list are those known to the state to cause cancer or pose reproductive health risks. Manufacturers of products containing these chemicals must provide notice to consumers or risk the imposition of penalties.
The United Kingdom’s environmental secretary has reportedly endorsed genetically modified (GM) crops, making the current Department for Environment, Food and Rural Affairs the most supportive of GM crops to date. In contrast to the previous government’s unwillingness to back what some apparently fear are “Frankenstein foods,” Secretary Caroline Spelman told a news source that she was in favor of GM foods “in the right circumstances.” Modifying plant genes could reduce the amount of chemicals needed to raise food crops, she said. “GM can bring benefits in food to the marketplace,” Spelman was quoted as saying. “There are benefits to developing countries, like drought resistance or resistance to high salt content in water. The principle of GM technology is [OK] if used well. The technology can be beneficial.” See The Guardian, June 4, 2010.
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