A federal court in California has denied in part and granted in part the motion to dismiss filed by Smart Balance, Inc., which is defending a putative class action alleging that the company misled consumers by marketing its Nucoa margarine as cholesterol-free and healthy despite the artificial trans fat in the product. Yumul v. Smart Balance, Inc., No. 10-00927 (C.D. Cal., order entered July 30, 2010). The plaintiff alleges violations of the state’s unfair competition and false advertising laws and violation of the Consumer Legal Remedies Act. She seeks an injunction requiring that the misleading advertising practices cease, a corrective advertising campaign, restitution, and an injunction requiring the destruction of all misleading and deceptive materials and products. The defendant asserted that the factual allegations lacked sufficient specificity and also contended that the complaint be dismissed because it was based on conduct outside the applicable limitations period. Declining to consider some materials submitted…
Category Archives Issue 359
With one judge dissenting, the D.C. Circuit Court of Appeals has determined that federal law does not bar domestic almond producers from challenging a rule that requires them to pasteurize or chemically treat their product to prevent Salmonella outbreaks. Koretoff v. Vilsack, No. 09-5286 (D.C. Cir., decided August 3, 2010). While the court allowed those who grow almonds to continue pursuing their challenge to the 2007 rule, it dismissed the claims of companies that package and sell the almonds to consumers, finding that, as “handlers,” they must first exhaust their administrative remedies before turning to the courts to resolve their dispute. The U.S. Department of Agriculture secretary promulgated the challenged rule under the authority of the Agricultural Marketing Agreement Act of 1937 (AMAA). California almond producers and retailers claim that the rule is arbitrary and capricious because it devastated the domestic raw almond market while leaving foreign producers, who are…
New York Governor David Paterson (D) has signed legislation (S. 3296-H/A. 6919-D) that prohibits the manufacture or sale of child care products such as baby bottles and sippy cups that contain bisphenol A (BPA) and are intended for children younger than age 3. The bill, which the Senate and Assembly passed in June 2010, is expected to take effect on December 1. Several other states, including Connecticut and Wisconsin, have enacted similar measures. “This law will ensure that a potentially harmful substance is no longer allowed in products used by our smallest and most vulnerable children,” Paterson said in a statement, which also claimed that “while BPA has not been conclusively proven to harm children or adults, a growing body of science indicates that infants and young children may be vulnerable to serious development problems as a result of exposure to BPA.” See Press Release of Governor David Paterson, July…
The Canadian Sodium Working Group (SWG) has released a report detailing a three-pronged strategy that aims to reduce the public’s salt consumption. After examining the issue for two years, the federally mandated group has established an interim sodium intake goal of a population average of 2,300 mg per day by 2016, with the ultimate goal of lowering “sodium intakes to a population mean whereby as many individuals as possible (greater than 95%) have a daily intake below the Tolerable Upper Intake Level (UL) of 2,300 mg per day.” To achieve these targets, the strategy contains six overarching and 27 specific recommendations focused on reducing sodium levels in processed food products and foods sold in restaurant and food service establishments; educating consumers, industry, health professionals, and other key stakeholders; and undertaking new research. In particular, the report urges (i) “published sodium reduction targets for foods”; (ii) “defined timelines”; (iii) “a mechanism…
The European Food Safety Authority (EFSA) has issued an August 2, 2010, report urging member states to increase their monitoring of furan, a compound with aromatic properties that can form in a variety of heat-treated commercial foods and which has purportedly been shown to be carcinogenic in animal experiments. EFSA intends to use the report to support a dietary risk assessment on furan. It updates data submitted by 18 member states on furan levels in 4,186 foods sampled and analyzed between 2004 and 2009, with 8 percent of the samples reported as foods consumed. The report sorted data into 21 different food categories (five coffee and 16 noncoffee categories), with the highest levels of furan found in the five coffee categories compared to other food groups. The highest non-coffee maximum concentrations were found in the “baby food” and “soups” categories. “ Jarred baby food and infant formula are of particular…
The Food and Drug Administration (FDA) has announced the availability of a draft compliance policy guide for FDA staff that provides direction on Salmonella in animal feed or feed ingredients that come into direct contact with people, such as pet food and treats, or that are “contaminated with a Salmonella serotype that is pathogenic to the target animal for which the animal feed is intended.” The guide “proposes criteria that should be considered in recommending enforcement action against animal feed or feed ingredients that are adulterated due to the presence of Salmonella.” FDA will accept comments until November 1, 2010. See Federal Register, August 2, 2010.
Food and Drug Administration (FDA) Commissioner Margaret Hamburg has released statements to support the reopening of Florida, Louisiana and Mississippi state waters to commercial fishing. According to Hamburg, “we are confident all appropriate steps have been taken to ensure that seafood harvested from waters being opened today is safe and that Gulf seafood lovers everywhere can be confident eating and enjoying the fish that will be coming out of this area.” Meanwhile, some are questioning whether inspector sniff tests are sufficient to ensure the safety of seafood from Gulf of Mexico waters. Experts reportedly say that the smell tests are an efficient and inexpensive way to test for fish safety and claim they are currently the only way to test fish for chemical dispersants. At least one oysterman and shrimp and crab fisherman was not convinced, saying, “If I put fish in a barrel and poured oil and Dove detergent…
Representative Rosa DeLauro (D-Conn.) has introduced a bill (H.R. 6024) that would require stricter testing procedures designed to eradicate “the dangerous Shiga toxin-producing E. coli bacteria” from meat and meat-processing facilities. The E. coli Traceability and Eradication Act would also establish a tracking procedure to enable the Department of Agriculture (USDA) to implement faster recalls. According to a DeLauro press statement, the proposal would require meat, slaughterhouse and grinding facilities to have ground beef and “beef trim” tested multiple times throughout the manufacturing process by an independent USDA-certified testing facility. In the event E. coli were detected, the bill would require the slaughter facility to immediately report contamination to USDA. The agency would then test the facility’s products for 15 consecutive days following the positive test and establish a “traceback procedure” to the original source of contamination for quicker product recalls and illness prevention. “By the end of this year, an estimated…
U.S. Representative Henry Waxman (D-Calif.) has requested that the Kellogg Co. provide documentation to the Committee on Energy and Commerce concerning the possible contamination of millions of cereal boxes with the chemical 2-methylnaphthalene. In his August 2, 2010, letter, Waxman refers to the June recall of more than 25 million boxes of “Corn Pops, Honey Smacks, Fruit Loops, and Apple Jacks cereal” and notes that while at least one study has shown the chemical at issue “may cause lung injuries in adults[, t]here are no studies indicating whether children are more susceptible.” Waxman cites a news article indicating that Kellogg destroyed tainted packaging before issuing the recall, and he seeks documents relating to (i) the company’s food safety policies and procedures; (ii) “any assessments of the health risks posed by 2-methylnaphthalene conducted by, commissioned by, or requested by your company, including a copy of the health risk assessment created by…
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