A recent study has reportedly claimed that bisphenol A (BPA) alters mammary gland development in rhesus monkeys, raising concerns about the chemical’s alleged link to breast cancer in humans. Andrew Tharp, et al., “Bisphenol A alters the development of the rhesus monkey mammary gland,” PNAS, May 2012. According to the study, researchers fed fruit containing 400 µg of BPA per kilogram of body weight to pregnant rhesus monkeys to achieve BPA serum levels “comparable to [those] found in humans.” The authors then examined the mammary glands of female offspring after birth, noting that “the density of mammary glands was significantly increased in BPA-exposed monkeys, and the overall development of their mammary gland was more advanced compared with unexposed monkeys.” Based on these results, one study author told media sources that the sum of scientific evidence suggests that BPA is also “a breast carcinogen in humans” and that its use should be…
Category Archives Issue 439
Asking “Wouldn’t it be better, as a general rule, if judges who meet regularly with prosecutors in advance of a cascade of high-profile indictments didn’t hear the cases that follow?,” Slate court-watcher Emily Bazelon recently discussed the petition for certiorari currently pending before the U.S. Supreme Court in the case of the kosher meatpacking facility manager convicted of bank fraud and sentenced to 27 years, essentially a life term for the 50-year-old defendant from Iowa. Rubashkin v. United States, No. 11-1203 (petition for cert. filed April 2, 2012). Mostly on procedural grounds, a federal appeals court rejected the defendant’s claims that the judge should have recused herself because she participated extensively with prosecutors in activities that led to an immigration raid on the facility, the detention and deportation of hundreds of workers, and charges of harboring illegal immigrants, child labor law violations and bank fraud. Bazelon suggests that the Court…
A Wisconsin-based cheese maker has reportedly agreed, under pressure from its Swiss parent and the Swiss gruyère industry, to cease using the word “gruyère” in labeling and promoting its Grand Cru Gruyère cheese. The change, effective in May 2013, was agreed to despite a recent decision by the U.S. Patent and Trademark Office (USPTO) refusing the “le gruyère” trademark because “[t]he existence of seven U.S. cheese manufacturers of gruyère cheese and the widespread generic internet and dictionary usage . . . clearly demonstrate that gruyère has lost its geographical significance and is now viewed as a genus of cheese.” Geographical food and beverage designations are significant in Europe where many EU countries give them legal protection; a French reporter apparently visited Wisconsin to cover the negotiations leading to the agreement. She indicated her wish that American cheese makers adopt the European approach and name their cheeses after the area of…
The Institute of Medicine (IOM) has published a May 8, 2012, consensus report assessing more than 800 obesity prevention strategies and identifying those “with the greatest potential to accelerate success.” Released at the Centers for Disease Control and Prevention’s Weight of the Nation™ conference and funded by the National Academies of Sciences, Robert Wood Johnson Foundation and Michael & Susan Dell Foundation, the report evidently focuses on five goals for preventing obesity: (i) “integrating physical activity into people’s daily lives”; (ii) “making healthy food and beverage options available everywhere”; (iii) “transforming marketing and messages about nutrition and activity”; (iv) “making schools a gateway to healthy weights”; and (v) “galvanizing employers and health care professionals to support healthy lifestyles.” Included in these goals are specific recommendations that address, among other things, sugar-sweetened beverage consumption, the availability of lower-calorie children’s meals in restaurants, nutritional labeling, and food and beverage marketing to children.…
The Center for Environmental Health has reportedly sued several grocery chains in California alleging that independent testing has shown that the honey they were selling contains high levels of lead in violation of Proposition 65 (Prop. 65). Some of the honey purchased and tested allegedly contained lead levels more than double the legal limit. According to the center, honey suppliers sometimes use metal barrels with lead solder that can leach into the honey. It is seeking agreements that would bind the companies to use non-leaded containers for their honey and to test their supplies for lead content. See Center for Environmental Health News Release, May 2, 2012.
The Court of Justice of the European Union (EU) has agreed, in part, with the European Commission’s challenge to requirements imposed by the Dutch government on contractors providing organic and fair trade products in its automatic coffee machines. EC v. Kingdom of the Netherlands, No. C-368/10 (E.C.J., decided May 10, 2012). According to the Court, government requirements for the award of contracts may be based on environmental or social criteria, but the criteria must be clear and the government must allow proof “that a product satisfies those criteria by all appropriate means.” The Court also held that “all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents.” To the extent that the Dutch requirements fell short of these standards, the Court found that the government failed to fulfill its obligations under the award of…
A Texas-based tomato producer has sued a Canadian company in federal court alleging that its packaging and label for grape tomatoes infringes the Nature Sweet Cherubs™ patents, issued in 2010 and 2011, and trademarks, in use since 2007. NatureSweet, Ltd. v. Mastonardi Produce Ltd., No. 12-1424 (N.D. Tex., filed May 8, 2012). According to the complaint, the defendant’s “Angel Sweet” label copies the Sweet Cherubs™ label by using similar colors and a “winged tomato design mark.” Claiming that its mark, in which the company has made a considerable investment, is famous and distinctive, the plaintiff alleges a likelihood of confusion among consumers by defendant’s use of similar marks and packaging. The plaintiff also claims that the defendant’s grape tomatoes, in contrast to its own, “do not have the same consistent great taste throughout the year.” Alleging federal trademark infringement, dilution and unfair competition; unjust enrichment; and design patent infringement, the…
The Sixth Circuit Court of Appeals has determined that the red dripping wax seal that Maker’s Mark Distillery has registered as a trade dress element used on its Kentucky bourbon bottles is protected under trademark law due to its strength and distinctiveness in the marketplace, thus upholding a lower court ruling that Jose Cuervo infringed the mark by using a similar element on its tequila bottles. Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., Nos. 10-5508/5586/5819 (6th Cir., decided May 9, 2012). With the apparent care of a connoisseur, the opinion’s author opens with a detailed history, part legend, of the birth of bourbon and explains how Maker’s Mark came to use the red dripping wax seal on its bottles. According to the court, the evidence fully supported the district court’s evaluation of the strength of the mark and its balancing of the factors regarding consumer confusion over Jose Cuervo’s…
New York and New Jersey residents have filed a putative class action in an Illinois federal court against the company that makes a line of kefir dairy products, alleging that they are falsely promoted as providing “clinically proven therapeutic benefits for various health conditions.” Keatley v. Lifeway Foods, Inc., No. 12-3521 (N.D. Ill., filed May 8, 2012). According to the complaint, Lifeway claims, without adequate proof, that its kefir products containing ProBoost, “an exclusive blend of live and active probiotic cultures,” can support immunity, enhance digestion, boost well-being, alleviate diarrhea, and otherwise address autoimmune disorders, bad breath, celiac disease, Crohn’s and colitis, high cholesterol, immune deficiency, infantile colic, irritable bowel syndrome, lactose intolerance, seasonal allergies, and yeast infections. The plaintiffs contend that they would not have purchased the products if they had known that ProBoost products “did not have the quality, health benefits or value as promised.” Seeking to certify a…
A coalition of animal rights organizations has reportedly filed a lawsuit against the U.S. Department of Agriculture (USDA) in federal court, alleging that the agency has violated the Poultry Products Inspection Act by allowing foie gras to be sold to consumers. Animal Legal Defense Fund v. USDA, No. __ (C.D. Cal., filed May 9, 2012). According to the plaintiffs, “the USDA is responsible for condemning all poultry products that come from diseased birds. Foie gras consists of the pathologically diseased livers of ducks who are force-fed massive amounts of grain, inducing the disease of hepatic lipidosis, which causes their livers to swell to ten times their normal size.” The organizations have petitioned the agency in the past to require warning labels that would state “NOTICE: Foie gras products are derived from diseased birds.” And they now cite a recent study that purportedly linked the consumption of foie gras to secondary…
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