A federal court in Washington has dismissed franchisor Domino’s Pizza from litigation alleging that a franchisee’s use of automatic calls with a prerecorded message to numbers stored from previous orders violated state and federal laws prohibiting “robo-calls.” Anderson v. Domino’s Pizza, Inc., No. 11-902 (W.D. Wash., decided May 15, 2012). While the claims against the franchisee and the telemarketing company that placed the calls remains intact, the court refused to certify a class because the plaintiff’s motion was untimely, the statutory damages alone would be significant, and the “burden of any award [which would be grossly disproportionate given the actual damages] would fall on a small business.” According to the court, Domino’s requires franchisees to use a phone system that can store customer numbers and introduced its franchisees to the telemarketer during a national convention in 2009. Domino’s also requires its franchisees to participate in advertising and promotions campaigns. Still, the…
Category Archives Issue 440
A federal court in California has dismissed several of the claims brought in a putative class action against General Mills, alleging that the company misleads consumers with the package labeling for its Fruit Roll-Ups® and Fruit by the Foot® products. Lam v. General Mills, Inc., No. 11-5056 (N.D. Cal., order entered May 10, 2012). Additional details about the litigation, in which the Center for Science in the Public Interest is representing the plaintiffs, appear in Issue 414 of this Update. The court agreed with General Mills that label statements about the products’ flavorings, i.e., “naturally flavored” and “fruit flavored,” conform to federal law, and thus state-law claims alleging that these statements are misleading or deceptive are preempted. In this regard, the court noted, “the regulation allows a producer to label a product as ‘natural strawberry flavored,’ even if that product contains no strawberries. While the regulation’s logic is troubling, the Court…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the comment deadline on its proposal to establish a maximum allowable dose level for methanol, a substance the forms naturally in fruits and vegetables when they are prepared for consumption by methods including slicing, chopping, pureeing, and juicing. At the request of the Technology Sciences Group, OEHHA has extended the deadline to June 25, 2012. OEHHA added methanol to the list of chemicals known to the state to cause reproductive toxicity (Prop. 65) in March. Additional details about the listing and proposed dose level appear in Issue 431 of this Update. See OEHHA News Release, May 17, 2012.
The European Commission has approved a list of 222 health claims—“for example on the role of calcium and bone health or vitamin C and the immune system”—that are permitted for use on food labeling and advertising. According to a May 16, 2012, press release, food manufacturers must adapt their practices to the new requirements by the beginning of December 2012, at which point “all claims that are not authorized and not on hold/under consideration shall be prohibited.” “Today’s decision is the culmination of years of work and marks a major milestone in regulating health claims on food,” said Health and Consumer Policy Commissioner John Dalli. “The EU-wide list of permitted health claims will be available on-line and will allow consumers everywhere in the EU to make an informed choice. Non-scientifically backed claims will have to be removed from the market after a short transition period.”
The European Food Safety Authority (EFSA) has issued a call for data as part of its ongoing risk assessment of bisphenol A (BPA) that includes an exposure assessment from both dietary and non-dietary sources. Spurred in part by a September 2011 report published by the French Agency for Food, Environmental and Occupational Health and Safety, EFSA has asked member states, researchers and other stakeholders to submit (i) “occurrence data in food and beverages intended for human consumption”; (ii) “migration data from food contact materials”; and (iii) “occurrence data in food contact materials.” According to EFSA, its latest BPA assessment will consider the “most vulnerable groups of the population (e.g. pregnant women, infants and children, etc.)” and rely on occurrence data “available in the public domain and from scientific literature” as well as any available biomonitoring data. The agency will accept data submissions until July 31, 2012.
Health and consumer organizations have urged the Obama administration to provide calorie labeling in “all retail food establishments that sell restaurant-type food, including supermarkets, convenience stores, movie theaters, casinos, bowling alleys, stadium, cafes in superstores, and hotels.” In a May 16, 2012, letter, representatives of more than 20 organizations in the National Alliance for Nutrition & Activity (NANA) took issue with the Food and Drug Administration’s (FDA’s) definition of “retail food establishments” as outlined in an April 2011 proposal for nutritional menu labeling for chain restaurants and vending machines mandated under the Affordable Care Act. The proposed rule was covered in Issue 389 of this Update. NANA argued that the definition would not only exclude other venues but “significantly limit the ability of consumers to make informed choices by reducing the number of venues providing calorie labeling.” In addition, the group advocates the inclusion of alcohol labeling in FDA’s final…
Referring to a report on the presence of antibiotic residues in distillers grain, an ethanol-production byproduct used as animal feed, U.S. Representatives Edward Markey (D-Mass.) and Louise Slaughter (D-N.Y.) have requested that Food and Drug Administration (FDA) Commissioner Margaret Hamburg provide information about the agency’s surveys of these residues and explain why FDA has not acted to ensure that ethanol producers are complying with federal food additives law. In their May 11, 2012, letter, the lawmakers contend that the misuse of antibiotics leads to the growth of antibiotic-resistant bacteria that threaten human health and results in the deaths of some 90,000 people annually. They note, “[t]he same antibiotics that are used in animal agriculture and that are important for human medicine such as penicillin, erythromycin, virginiamycin and tylosin, are also used by ethanol producers in order to prevent bacterial growth during the corn-based ethanol fermentation process. Producers sell the byproduct…
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