A federal court in New Jersey has reportedly stayed for six months consumer fraud litigation against the company that makes Arizona Iced Tea® beverages and has asked the Food and Drug Administration (FDA) to determine whether high-fructose corn syrup (HFCS) qualifies as a “natural” ingredient. Coyle v. Hornell Brewing Co., No. 08-2797 (D.N.J., stay order entered June 15, 2010). Claiming that these beverages are deceptively marketed as “100% Natural” despite containing HFCS, the plaintiff alleges violation of the New Jersey Consumer Fraud Act, unjust enrichment and common-law restitution, and breach of express and implied warranties. The court issued the stay rather than dismiss the putative class action outright as requested by the defendants on the basis of the doctrine of primary jurisdiction. According to a news source, the court acknowledged that “categorizing HFCS as either natural or artificial for the purpose of food and beverage labeling does not fall within…
Category Archives Issue 356
This article examines the fallout from Kellogg Co.’s recall of 28 million cereal boxes that, according to a public statement, contained “elevated levels of hydrocarbons, including methyl naphthalene, normally found in the paraffin wax and film in the liners.” The company voluntarily pulled the products after receiving complaints about an “off-flavor and smell,” which caused nausea and other gastrointestinal ailments in some consumers. Schor highlights the failure of Congress to pass reform measures that would allow the Food and Drug Administration (FDA) to issue mandatory recalls. “[T]he legislation sits in limbo in the upper chambers as industry groups chafe at Sen. Dianne Feinstein’s (D-Calif.) bid to ban another chemical with an unclear safety history, bisphenol A, from food containers,” she writes. Citing a recent Environmental Working Group (EWG) report that underscores the potential toxicity of methyl naphthalene, Schor raises questions about the overall safety of food packaging. EWG has “urged…
La Vida Locavore blogger Jill Richardson claims in a July 6 AlterNet article that a recent webinar touting a “perspective on pesticide residues” was benignly marketed to federal and state health officials by a “self-described non-profit organization,” the Alliance for Food and Farming. While the Alliance’s website does not identify its supporters, Richardson asserts that the organization is an industry “front group” representing California-based farm and pesticide interests, one of which apparently argued in the film Food, Inc. that “foods containing clones should not be labeled.” “[F]ront groups are a common vehicle industry uses to delude, confuse, and sometimes overtly defraud the public,” Richardson says. She cites author Anna Lappé’s book Diet for a Hot Planet highlighting a 1969 tobacco industry internal memo that discusses “establishing a controversy,” and Lappé opines that “The food industry long ago saw the benefits of fomenting confusion; confusion defuses public outcry about our toxic…
According to news sources, a St. Louis jury has awarded more than $500,000 to a Louisiana farmer who alleged that when the U.S. rice supply was contaminated in 2006 with a genetically modified (GM) crop that was somehow released from testing facilities, he lost $1.5 million due to lost sales abroad. In re: Genetically Modified Rice Litig., MDL No. 1811 (E.D. Mo.). The lawsuit is the third to reach trial of more than 500 consolidated before a multidistrict litigation court in eastern Missouri; it marks the third loss in federal court for the defendant, which is facing more than $52 million in jury awards. Two state trials also resulted in plaintiff verdicts. While the defendant has not apparently disputed the contamination, it has denied that it was negligent and contends that rice sales recovered shortly after the initial plunge. See Bloomberg Businessweek and Post Dispatch, July 14, 2010.
As part of its ongoing campaign to persuade government authorities to prohibit the use of bisphenol A (BPA), the Natural Resources Defense Council (NRDC) recently filed a lawsuit in the D.C. Circuit Court of Appeals seeking to force the Food and Drug Administration (FDA) to take action on a petition the organization filed in October 2008 requesting that the agency prohibit the chemical’s use in food packaging. In re: NRDC, Inc., No. 10-1142 (D.C. Cir., filed June 29, 2010). One year ago, NRDC also submitted a petition to California EPA’s Office of Environmental Health Hazard Assessment, requesting that BPA be added to list of chemicals “known to the state to cause reproductive toxicity” under the Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as Prop. 65). In its lawsuit, NRDC notes that more than 600 days have passed since its FDA petition was filed, and the NRDC reiterates…
A federal court in California has dismissed a putative class action alleging that consumers were misled into believing that Cap’n Crunch’s Crunch Berries® cereal contained real berries or fruit. Werberl v. PepsiCo, Inc., No. 09-04456 (N.D. Cal., decided July 1, 2010). Noting that one law firm had filed unsuccessful suits in two other California federal district courts on behalf of two other class representatives, the court observed that the claims before it were “virtually identical.” Additional information about the dismissal of one of the other cases appears in issue 306 of this Update. According to the court, “no reasonable consumer would believe that Cap’n Crunch derives any nutritional value from berries” and any reliance on the use of the term “crunch berries” to imply “that real berries or fruit are contained in the cereal would neither be reasonable nor justifiable.” The court also found that leave to amend was unwarranted…
A federal court in Washington has dismissed the lawsuit filed by a man who alleged that inhaling the diacetyl in fumes from four to six bags of microwave popcorn daily caused his lung disease. Newkirk v. ConAgra Foods, Inc., No. 08-273 (E.D. Wash., decided July 2, 2010). Additional information about this litigation appears in issue 274 of this Update. Represented by the Independence, Missouri, attorney who has brought claims on behalf of popcorn factory workers and other consumers, Larry Newkirk sought to introduce the general causation opinion of physician David Egilman and the specific causation opinions of Dr. Charles Pue, Dr. Allan Parmet and William Ewing. The court analyzed Egilman’s proposed testimony and found it unreliable on a number of grounds, including that he sought to extrapolate residential diacetyl exposures from industrial exposures, which have been extensively studied and associated with bronchilitis obliterans, a debilitating lung disease also referred to…
The Ninth Circuit Court of Appeals has imposed a suspension, a formal reprimand and fines on several attorneys who attempted to enforce in U.S. courts a $489 million default judgment entered by a Nicaraguan court against a business entity that did not exist for allegedly exposing hundreds of banana plantation workers to pesticides. In re: Thomas V. Girardi, Esq., Nos. 08-80090, 03-57038 (9th Cir., decided July 13, 2010). The litigation in Nicaragua had been filed against “Dole Food Corporation” and “Shell Oil Company,” but should instead have named “Dole Food Company” and “Shell Chemical Company.” According to the court, “In a high-stakes gamble to enforce a foreign Judgment of nearly a half billion dollars, Respondents initiated and directed years of litigation against Defendants. Respondents efforts went beyond the use of ‘questionable tactics’—they crossed the line to include the persistent use of known falsehoods.” Those falsehoods included that (i) “Dole Food Company…
California EPA’s Office of Environmental Health Hazard Assessment has issued a notice indicating that it has proposed adding the qualifier “oral” to the maximum allowable dose level (MADL) for cadmium. Apparently, this qualifier was inadvertently omitted when the MADL of 4.1 micrograms per day was adopted under Proposition 65 (Prop. 65) in 2002. Comments must be submitted no later than August 23, 2010. Cadmium has apparently been used as a plasticizer, and some studies have indicated that it can be transferred to food by its use in fertilizer.
The UK Food Standards Agency (FSA) is reportedly the next target of the new Conservative-Liberal Democrat coalition government and Secretary of State for Health Andrew Lansley, who has released a white paper pledging to cut the National Health Service (NHS) and abolish quasi-governmental organizations “that do not need to exist.” Although a structural plan published alongside the paper recommends reforms to the food safety watchdog, media reports have cited unidentified sources as suggesting that Lansley plans to eliminate FSA and reallocate its duties to the Department of Health (DH) and the Department for Food, Rural Affairs and the Environment (Defra). DH, however, has countered these claims, maintaining that under the proposed reorganization, FSA would relinquish its oversight of nutrition policy but continue to serve “a robust regulatory function.” See The Guardian, July 12, 2010; DH Press Statement, July 15, 2010. The rumor has drawn swift criticism from consumer and health groups such…
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