The nonprofit group As You Sow has issued a report calling on the food industry to evaluate the safety of nanomaterials used in food packaging. Titled “Sourcing Framework for Food and Food Packaging Products Containing Nanomaterials,” the report claims that better communication is needed between food companies and their suppliers to “protect themselves from financial and reputation risk.” According to the report, toxicity risks related to “nanofoods, nano food packaging and nano agrochemicals” are “very poorly understood” because of lack of federal regulations. To stay ahead of regulations, the report calls on the food industry to (i) “[f]ind out if your company has nanomaterials in its products and supply chain, (ii) “[p]ut a policy in place that suppliers must disclose if their products contain or were manufactured with the use of nanomaterials,” (iii) require “that their supply chain disclose any use of nanomaterials and all related safety testing data and safety…
Category Archives Issue 420
McDonald’s Corp. has reportedly responded to a San Francisco ban on giving away toys with its Happy Meals® by allowing parents to purchase the toys with a 10-cent charitable contribution when they buy a Happy Meal®. While the toy purchase is purportedly a separate transaction that complies with the new ordinance, it will still require a Happy Meal® purchase because toys cannot not be obtained by those who do not purchase the meal for their children. Previously, the toys could be purchased without buying a Happy Meal®. According to the company, the donations will help build a new Ronald McDonald House where parents of sick children at a University of California, San Francisco, hospital currently under construction will be able to stay. At least one public health advocate, evidently unhappy with the company’s action, was quoted as saying that McDonald’s “has developed a response to the law that allows them…
The Center for Science in the Public Interest (CSPI) recently issued a letter to the Food and Drug Administration (FDA) to update the agency on its findings about mycoprotein, a meat-substitute marketed under the brand name Quorn. Following up on a 2002 campaign, the latest initiative claims that the RNA-reduced mold Fusarium venenatum used to produce Quorn is not safe, with consumers reporting reactions such as vomiting and diarrhea, hives, and anaphylaxis. “CSPI has now received about 500 reports of adverse reactions from Americans, as well as about 1,200 from the United Kingdom, other European countries, Scandinavia, and Australia,” writes CSPI Executive Director Michael Jacobson. Believing that small-print allergen warnings are not enough in this case, the group has asked FDA to compel Quorn to display “a prominent and candid front-label disclosure” alerting consumers to the alleged side effects. CSPI has also requested a revocation of mycoprotein’s generally recognized as…
The Environmental Working Group (EWG) has issued a December 2011 report claiming that many popular cereal brands marketed to children contain “just as much sugar as a dessert—or more.” After reviewing 84 popular brands, the report’s authors alleged that three out of four cereals failed “to meet the federal government’s proposed voluntary guidelines for food nutritious enough to be marketed to children,” with 21 cereals exceeding the sugar limit “recommended by the industry’s own nutrition initiative.” In particular, EWG purportedly found that (i) 56 cereals contained “more than 24 to 26 percent sugar by weight”; (ii) 71 cereals exceeded 140 milligrams of sodium and 10 exceeded 210 milligrams; (iii) seven cereals exceeded 1 gram of saturated fat; and (iv) “at least 26 cereals are not predominantly whole-grain.” The group also criticized cereal companies for opposing the 2016 nutrition guidelines suggested by the federal Interagency Working Group (IWG) on Food Marketed…
Glenn Lammi, chief counsel for the Washington Legal Foundation’s Legal Studies Division, has published an article suggesting that if “regulation-by-litigation practitioners” can convince the public and policymakers that “certain foods or substances in foods are ‘addictive,’” lawsuits against food companies are sure to follow. Lammi discusses a November 27 “60 Minutes” report in which a professional flavoring company employee agreed with Morley Safer that the company was “trying to create an addictive taste.” The article also cites studies purportedly showing that foods high in fats and sugars are as addictive as cocaine. According to Lammi, obstacles to such litigation remain. “Liability claims based on consumers’ ‘addiction’ to certain foods would still face substantial hurdles,” he writes, “such as the need to show how an allegedly addictive substance in food caused a plaintiff to become dangerously overweight. Causation is much different from correlation. Lawyers would have to discount the many other…
A California court has determined that California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) complied with the law in determining that 4-methylimidazole (4-MEI), a chemical present in many common foods and beverages, is a carcinogen known to the state to cause cancer. Cal. League of Food Processors v. OEHHA, No. 34-2011-80000784 (Cal. Super. Ct., decided November 21, 2011). As noted by the court, “The chemical is used in the manufacture of various products like pharmaceuticals, and it is a by-product of fermentation found in food products like soy sauce, roasted coffee, and caramel coloring added to colas and beer.” A number of trade associations representing an array of food and beverage interests challenged the listing, which will require product warnings under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). They claimed that OEHHA’s reliance on a National Technology Program technical report on 4-MEI did…
After Vermont-based folk artist Bo Muller-Moore decided to apply for a federal trademark to protect his “Eat More Kale” T-shirt design, fast food chain Chick-fil-A reportedly accused him of infringing its “Eat Mor Chikin” trademark. The kale design has apparently caught on with consumers, who pay $25 each for the T-shirts and have purchased a sufficient quantity for Muller-Moore to support his family. With powerful allies such as Vermont Governor Peter Shumlin (D), who reportedly said, “Don’t mess with Vermont. Don’t mess with kale. And Chick-fil-A, get out of the way because we are going to win this one,” Muller-Moore has vowed to defend the claim. Publicity about the fracas has apparently generated a rash of sales, which Chick-fil-A hopes to stop; the company has also apparently sought an order requiring Muller-Moore to turn over his website, eatmorekale.com. See NPR.org, December 6, 2011.
A New Mexico resident has filed a putative statewide class action in federal court claiming that a company which makes one-cup coffee cartridges for Keurig® single-serve coffee machines falsely labels and markets its cartridges as fresh coffee when they are actually filled with instant coffee. Bracewell v. Sturm Foods, Inc., No. 11-01024 (D.N.M., filed November 18, 2011). Alleging violations of New Mexico and Illinois consumer fraud laws and unjust enrichment, the plaintiff seeks statutory damages, injunctive relief, attorney’s fees, and costs.
A Nebraska resident alleging that his consumption of Listeria-contaminated cantaloupe grown by Jensen Farms in Colorado caused his infection and subsequent hospitalization, has filed a personal injury action against the grower, distributor, retailer, and the company hired by the grower to conduct a food safety audit before the outbreak. Braddock v. Jensen Farms, No. 11-402 (D. Neb., filed November 30, 2011). According to the complaint, Primus Group, Inc. was negligent in performing the audit and failing to detect Listeria or conditions leading to Listeria contamination at the grower’s facilities and, in breaching its contract with the grower, harmed the plaintiff, a third-party beneficiary. The plaintiff also alleges strict product liability, breach of warranty, negligence, and negligence per se against the other defendants and seeks general, special and incidental damages.
A federal court in Florida has redefined a plaintiffs’ class in deceptive advertising litigation against the company that claims its Yo-Plus® yogurt provides digestive health benefits. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., order entered December 2, 2011). While the Eleventh Circuit Court of Appeals upheld the class certification decision, it remanded the case for the lower court to redefine the class to omit any reference to plaintiffs’ reliance on company claims, which reliance need not be proved under the Florida Deceptive and Unfair Trade Practices Act. Additional information about the Eleventh Circuit ruling appears in Issue 388 of this Update. The class will now be defined as “all persons who purchased Yo-Plus in the State of Florida until the date notice is first provided to the class.”
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