A federal court in Maryland has dismissed, under the first-to-file rule, a lawsuit brought by a plaintiff characterized as a “frequent flyer in the United State judicial system,” finding that five similar putative class action lawsuits against the defendants, three of which were filed before the plaintiff filed his complaint, are currently pending in a federal court in California. Hinton v. Naked Juice Co., No. 11-3740 (D. Md., decided April 30, 2012). The plaintiff, who has apparently filed at least 43 other federal civil lawsuits, all dismissed as frivolous, sought $100,000 in damages from the defendants, claiming that they label their beverages as “Non-GMO” and “natural” while using genetically modified and synthetic ingredients. He filed the complaint in state court, and it was removed to federal court. After the defendants sought to dismiss the case or transfer it to California on convenience grounds, the plaintiff filed a motion for remand.…
Category Archives Issue 439
The Second Circuit Court of Appeals has determined that a New York law enacted in 2004, following the invalidation of a prior version, does not violate the Establishment or Free Exercise Clauses of the U.S. Constitution and is not unconstitutionally vague. Commack Self-Service Kosher Meats, Inc. v. Hooker, No. 11-3517 (2d Cir., decided May 10, 2012). The previous law, which defined “kosher” in terms of orthodox Hebrew religious requirements and required adherence to them, was found to (i) advance religion, i.e., the dietary restrictions of Orthodox Judaism, and (ii) inhibit religion “by preventing labeling of food products as kosher that did not meet the Orthodox Jewish religious requirements.” The newer version simply required those marketing their food products as “kosher” to label them as kosher and to “identify the individuals certifying their kosher nature.” The new law did not “define kosher or authorize state inspectors to determine the kosher nature…
The Second Circuit Court of Appeals has determined that Starbucks Corp. did not violate federal labor law by adopting a dress code which limits the number of pro-union buttons its employees can wear on their uniforms. NLRB v. Starbucks Corp., Nos. 10-3511, 10-3783 (2d Cir., decided May 10, 2012). The National Labor Relations Board (NLRB) had ruled that multiple pro-union buttons, at one-inch in diameter, “did not seriously harm Starbucks’s legitimate interest in employee image because ‘the Company not only countenanced but encouraged employees to wear multiple buttons as part of that image.’ These other buttons, the Board found, were not immediately recognizable by customers as company-sponsored, and the pro-union pins at issue were ‘no more conspicuous than the panoply of other buttons employees displayed.’” Reversing this part of NLRB’s determination, the appeals court said that it had gone too far. “Starbucks is clearly entitled to oblige its employees to wear…
The European Food Safety Authority (EFSA) has announced the resignation of Management Board Chair Diána Bánáti, describing her decision to accept a position at the International Life Sciences Institute (ILSI) as “incompatible” with her agency duties. Bánáti apparently agreed to step down after critics raised concerns about EFSA’s supposed lack of transparency “in its links with lobbyists for biotech and food companies,” noted a May 9, 2012, Parliament article. Additional details about a Corporate European Observatory report that focused on EFSA members with ILSI ties appear in Issue 399 of this Update. Although EFSA stressed that board members must consider public perception in undertaking “any activities which could raise doubts about their independence,” Bánáti in her resignation speech reportedly defended the agency as “one of the most transparent organizations I know.” She also reiterated that ILSI Europe, where she will serve as executive and scientific director, is not an industry lobbying…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has proposed new traceback measures to better control and prevent pathogens from triggering foodborne illnesses and outbreaks. Particularly concerned with meat contaminated with Escherichia coli (E. coli), FSIS plans to “move quickly to identify the supplier of the product and any processors who received contaminated product from the supplier, once confirmation is received.” FSIS, which has provided industry guidelines on the matter, requests comments by July 6, 2012. See FSIS Press Release, May 2, 2012; Federal Register, May 7, 2012. FSIS has also issued a proposed rule that would remove the food preservatives sodium benzoate, sodium propionate and benzoic acid from a list of substances prohibited for use in meat or poultry products. Under the proposal, the Food and Drug Administration would continue to approve new safety uses of these substances in meat or poultry products while FSIS would approve them for…
The Food and Drug Administration (FDA) has determined that it will neither conduct a hearing nor make any changes to its final rule on the use of irradiation in processing and handling food. According to the agency, “the objections do not justify a hearing or otherwise provide a basis for revoking the regulation,” issued in October 2000 in response to a petition filed by Caudill Seed Co. which sought a regulatory amendment allowing “the safe use of ionizing radiation to control microbial pathogens in seeds for sprouting.” So ruling, FDA rejected Public Citizen’s concerns that the agency failed to apply a 100-fold safety factor, the petitioner submitted no conventional animal toxicity studies on sprouts from irradiated seeds, the review memorandum contained unsubstantiated statements, and the nutritional adequacy of irradiated seeds is questionable, among other matters. See Federal Register, May 11, 2012.
The National Consumers League (NCL) has filed a formal complaint with the Food and Drug Administration (FDA), alleging that NuVal LLC’s point of purchase nutrition rating system is “inconsistent with FDA guidance statements and enforcement correspondence, federal nutrition programs, and recommendations from the Institute of Medicine (IOM).” Used by more than 1,600 grocery stores in 31 states, the NuVal system apparently scores products out of 100 total points, with more nutritious options garnering a higher rating. NCL has argued, however, that NuVal relies on “a proprietary, non-public algorithm that can lead to inconsistent scores that may confuse and mislead consumers,” and has asked FDA to issue a warning letter to the retail industry about its continued use. Citing an IOM report on nutrition rating systems that criticized NuVal’s formula, the NCL complaint contends that NuVal “runs afoul” of FDA Guidance on Point of Purchase Labeling, which stipulates that all such…
The Public Health Advocacy Institute (PHAI) and several other organizations have asked the Federal Trade Commission (FTC) to “investigate PepsiCo’s current ‘Win from Within’ commercial television advertisement and commercial website for its Gatorade sports drink product featuring Michael Jordan’s performance during game 5 of the 1997 NBA Finals.” According to the letter, joined by groups such as the California Center for Public Health Advocacy, Center for Science in the Public Interest and Yale Rudd Center for Food Policy & Obesity, the ad “encourages teens to engage in dangerous behavior; sequences historical events to falsely enhance the role of Gatorade in Mr. Jordan’s game-winning athletic performance; and contains deceptive product imagery.” The letter claims that the ad targets teens by airing on cable networks appealing to teens, such as “Adult Swim, Teen Nick, ABC Family, and MTV.” The organizations claim that the ad promotes vigorous physical activity during illness, including a…
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