A recent study funded by the Robert Wood Johnson Foundation (RWJF) has reportedly registered a significant decrease in the availability of soft drinks in secondary schools but “widespread access to other sugary beverages, such as fruit drinks and sport drinks.” Yvonne Terry McElrath, et al., “Trends in Competitive Venue Beverage Availability: Findings From US Secondary School,” Archives of Pediatric and Adolescent Medicine, August 2012. After surveying the availability of competitive beverages in 1,900 public middle and high schools from 2006-07 to 2010-11, researchers with the University of Michigan’s Institute for Social Research reported that the percentage of high school students with access to regular soda fell to 25 percent in 2010-11 from 54 percent in 2006-07, while the percentage of middle schoolers with access to regular soda declined to 13 percent in 2010-11, down from 27 percent in 2006-07. At the same time, however, the survey purportedly revealed that 63 percent of…
Category Archives Issue 449
A University of Minnesota study has reported that diacetyl (DA), a food additive used to mimic butter flavors, allegedly “intensifies the damaging effects of an abnormal brain protein linked to Alzheimer’s disease,” according to a recent American Chemical Society press release. Swati More, et al., “The Butter Flavorant, Diacetyl, Exacerbates β-Amyloid Cytotoxicity,” Chemical Research in Toxicology, August 2012. After noticing that the structure of DA resembles a substance “that makes beta-amyloid proteins clump together in the brain,” researchers apparently sought to determine whether the food ingredient could also cause the clumping described as “a hallmark of Alzheimer’s.” Their results evidently showed that DA at occupational exposure levels not only increased levels of beta-amyloid clumping but “enhanced beta-amyloid’s toxic effects on nerve cells growing in the laboratory.” Further experiments also suggested that DA “easily penetrated the so-called ‘blood-brain barrier,’ which keeps many harmful substances from entering the brain” and “stopped a…
“In an era of political polarization, Michael Bloomberg has the rare ability to come up with policies that enrage everyone,” opines New Yorker staff writer James Surowiecki in this August 13, 2012, article analyzing the mayor’s plan to prohibit all New York City food vendors from selling sodas in sizes larger than 16 ounces. Surowiecki argues that despite bipartisan disdain for the proposal, Bloomberg’s scheme “makes clever use of what economists call ‘default bias,’” the tendency for consumers to choose certain options not because they reflect actual needs or desires but because they are presented as the default selection within the context of other choices. As Surowiecki recounts, researchers have allegedly shown that people calibrate their consumption habits by outside cues “like the size of a package or a cup” as opposed to feelings of satiety. “And since the nineteen-seventies the portion sizes offered by food companies and restaurants have…
According to Nestlé Australia, some consumers feeding their babies NAN H.A. [hypoallergenic] 1 Gold® infant formula have complained about alleged adverse health effects. A news source indicates that purchasers have reported in online reviews that their children have experienced rashes, dark green stools, dehydration, and vomiting, among other symptoms. Calling product safety and quality a “non-negotiable priority for the company” Nestlé, which has been testing the product, further states on its website that results “to date confirm there is no food safety issue.” The company apparently reformulated the product in 2011, replacing calcium chloride with potassium chloride to produce “a better taste and a smoother texture to the powder,” and otherwise improving its “nutritional profile.” See Nestlé News Release, August 8, 2012; FoodProductionDaily.com, August 9, 2012.
A Los Angeles County resident has filed a putative class action against the Austrian and British makers of “Oxygizer” water, claiming that the companies “falsely represent that through a patented process they are able to hyperoxygenate water and that consumption of Oxygizer leads to a number of purported beneficial health effects.” Ghazarian v. Oxy Beverages Handelsgesellschaft mbH, No. BC489773 (Cal. Super. Ct., filed August 7, 2012). Noting that people cannot absorb oxygen through their digestive systems, the plaintiff alleges that the defendants mislead consumers by falsely claiming their beverage can aid athletic performance, transport oxygen to every body cell, strengthen the immune system, and help office workers in large cities make up oxygen deprivation. The companies purportedly claim that scientific tests support their product representations and that their water is patented; the plaintiff alleges that these claims are also false and misleading. According to the plaintiff, the Federal Trade Commission has…
The day after district attorneys for three California counties filed a lawsuit against tuna producers alleging that they make quantity misrepresentations “by failing to meet the standard of identity for canned tuna products seasoned or flavored with broth, as defined in the Code of Federal Regulations,” it was announced that a $3.3 million settlement had been reached. California v. Bumble Bee Foods, LLC, No. 12-11729 (Cal. Super. Ct., filed August 2, 2012). According to the San Diego County district attorney, a California Department of Food and Agriculture (CDFA) investigation discovered that the companies “failed to meet the required amount of tuna in cans packed with vegetable broth and added flavors.” Under the terms of the agreement and without admitting liability, each company will provide $300,000 in canned tuna to California food banks, and costs and penalties will be divided among the counties with each receiving $969,500. CDFA will be paid investigative…
A California Superior Court has reportedly dismissed a lawsuit filed by nearly 3,000 Philippine banana plantation workers who claimed that exposure to the pesticide 1,2-Dibromo-3-chloropropane (DBCP) more than 30 years ago caused physical and mental injury including sterility, testicular atrophy, miscarriages, and cancer. Macasa v. Dole Food Co., No. BC467134 (Cal Super. Ct., decided August 8, 2012). More details about the litigation appear in Issue 405 of this Update. According to a company spokesperson, the claims were fraudulent and should not have been brought because no reliable scientific evidence links DBCP agricultural exposures to the injuries alleged. The company reported that an identical lawsuit filed 13 years ago in the Philippines was also dismissed. The U.S. Environmental Protection Agency has apparently prohibited the pesticide’s use in the United States, classifying it as a probable human carcinogen. See Ventura County Star, August 9, 2012.
A Texas appeals court has dismissed product liability and negligence claims filed by a woman injured when she was struck twice in the face with a longneck beer bottle during a birthday celebration at a bar known for its violence. Gann v. Anheuser-Busch, Inc., No. 08-00017 (Tex. App., 8th Dist., July 25, 2012). Affirming the trial court’s grant of the defendants’ motion for summary judgment, the appeals court determined that the plaintiff “failed to produce more than a scintilla of evidence that the longneck bottle was defectively designed so as to render it unreasonably dangerous and failed to establish that Appellees owned her a legal duty to protect her from the criminal acts of a third person.” Specifically, the court found insufficient evidence that the risk of injury from the bottle’s design outweighs its utility despite the plaintiff’s assertions that “beer bottles are used commonly in assaults in the local…
A federal magistrate judge in New York has determined that the Food and Drug Administration (FDA) must begin proceedings to withdraw its approval of the use of certain antibiotics in livestock for non-therapeutic purposes on the agency’s timeline, thus denying FDA’s request for a stay while the matter is pending on appeal before the Second Circuit. NRDC v. FDA, No. 11-3562 (S.D.N.Y., decided August 8, 2012). In June, the court determined that FDA arbitrarily denied petitions filed by advocacy organizations in 1999 and 2005 requesting the initiation of these proceedings. More information about the case appears in Issue 442 of this Update. The magistrate first ruled on the Natural Resource Defense Council’s (NRDC’s) motion to strike a document from the record; it was an Animal Health Institute statement “expressing general support for the FDA’s plans to reduce the non-therapeutic use of medically-important antibiotics in animal feed through a voluntary guidance…
The Ninth Circuit Court of Appeals has determined that the “filed rate doctrine” does not bar the state law-based claims of dairy farmers alleging that milk marketing cooperatives (handlers) provided erroneous reports to the federal government which relied on them to set a minimum price structure for raw milk sales; as a result, the farmers purportedly lost millions of dollars. Carlin v. DairyAmerica, Inc., No. 10-16448 (9th Cir., decided August 7, 2012). Each of the four named plaintiffs in this consolidated proceeding filed claims on behalf of a nationwide class alleging (i) negligent misrepresentation, negligent interference with prospective economic advantage and unjust enrichment, all under California common law; and (ii) violation of California’s Unfair Business Practices Law. The filed rate doctrine “‘is a judicial creation that arises from decisions interpreting federal statutes that give federal agencies exclusive jurisdiction to set rates for specified utilities, originally through rate-setting procedures involving the…
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