Chipotle Mexican Grill, Inc. has filed another infringement action against a retailer allegedly selling a chicken sandwich combo using the CHIPOTLE® trademark. Chipotle Mexican Grill, Inc. v. Jack in the Box, Inc., No. 12-02511 (D. Colo., filed September 21, 2012). Information about the trademark infringement lawsuit Chipotle filed in April against Kroger Co. appears in Issue 435 of this Update. In the new action against Jack in the Box, Chipotle alleges that when asked to cease using the CHIPOTLE® marks to promote its chicken sandwich, the defendant responded that its use of the word did not infringe the marks and that it did not currently plan to use the mark, which was used in connection with a limited time offer, in the future. Still, according to the complaint, the defendant “suggested that it would use the CHIPOTLE Marks in the future.” Claiming that its marks have “acquired substantial goodwill and are…
Category Archives Issue 455
The Humane Society of the United States (HSUS) has sued the U.S. Department of Agriculture (USDA) seeking to end payments made to the National Pork Producers Council (Pork Council) for the purchase of the registered mark “Pork, The Other White Meat.” HSUS v. Vilsack, No. 12-01582 (D.D.C., filed September 24, 2012). According to the complaint, which details the circumstances leading to the mark’s creation, development and use, the Pork Council should not have retained ownership of the mark, and the $60-million, 20-year contract for its purchase should have been terminated when USDA decided to retire the mark and create a new one. HSUS contends that the contract is funded with pork-producer checkoff program dollars, which cannot be used for lobbying. Because the Pork Council is a lobbying organization, HSUS claims that the ongoing payments under the purchase agreement violate federal law. HSUS seeks a declaration that these expenditures of checkoff…
A federal court in New York has dismissed with prejudice claims that Mario Batali’s Del Posto restaurant allegedly retained portions of workers’ tips in violation of federal and state labor laws after approving an agreement requiring the defendants to pay $1.15 million into a settlement fund and provide workers with training and paid vacation time and sick leave. Amastal v. Pasta Resources, Inc., No. 10-07748 (S.D.N.Y., order entered September 24, 2012). Additional information about the lawsuit can be found in Issue 368 of this Update. The 31 plaintiffs in this lawsuit had opted out of a similar class action involving captains, servers, waiters, bussers, runners, backwaiters, bartenders, and barbacks at Del Posto and seven other restaurants; the class action apparently concluded with a $5.25 million settlement deal preliminarily approved in May. Details about the class action appear in Issues 361 and 430 of this Update. The deal also apparently releases claims…
A federal court in New York has denied a motion to dismiss a consumer fraud action against the company that makes Four Loko®, a beverage allegedly containing high alcoholic and caffeine content and sold without disclosing “possible negative health effects.” Yourth v. Phusion Projects, LLC, No. 11-1261 (N.D.N.Y., decided September 27, 2012). The defendant contended that the court lacked subject matter jurisdiction on the ground of mootness “because defendant has offered ‘to fully refund any amounts that Plaintiff paid for Four Loko as well as any fees and costs he incurred.’” Noting that the circuit courts have split over whether a defendant can moot a putative class action by offering to satisfy the plaintiff’s demand before a motion for class certification is filed, the court concluded that “unless plaintiff has unduly delayed in moving for certification, defendant’s offer of full relief does not moot the action.” According to the court,…
The New York City Department of Health and Mental Hygiene (DOHMH) has announced that more than 30 public and private hospitals have joined its voluntary Healthy Hospital Food Initiative, a new program seeking to make healthier food choices available in health care settings. Billed as part of the department’s ongoing effort to curb obesity, the new initiative requires participating hospitals to implement the NYC Food Standards established in 2008 by Mayor Michael Bloomberg in four areas: “cafeterias, beverage vending machines, food vending machines and patient meals.” According to DOHMH, these standards are based on U.S. Department of Agriculture and Institute of Medicine nutritional guidelines and “use progressive strategies to make healthy foods easily available.” Under the new initiative, hospital cafeterias must use a variety of techniques “to make the healthy choice the easy choice” by increasing the availability of fresh fruits, vegetables and whole grains; limiting the promotion of high calorie…
New York State Senator Gustavo Rivera (D-Bronx) has introduced a bill (S7849-2011) that would require fast-food restaurants offering incentive items, such as toys, with children’s meals to meet certain nutritional guidelines. The standards, designed to limit the amount of fat, sugar, calories, and sodium per meal, would be established by the state health commissioner. “Incentive items” under the proposal, which has been committed to the Committee on Rules, would also include games, trading cards, admission tickets, “or other consumer product, whether physical or digital, with particular appeal to children.” Such items would also include “any coupon, voucher, ticket, token, code or password which is provided directly by the restaurant and is redeemable for or grants digital or other access to any toy, game, trading card, admission ticket, or other consumer product” appealing to children. The measure defines restaurant to include coffee shops, cafeterias, luncheonettes, sandwich stands, diners, short-order cafes, fast-food…
The U.K. Advertising Standards Authority (ASA) has ruled that print and Web advertisements for Alpro (UK) Ltd.’s almond milk are not misleading. ASA received two complaints alleging that the advertisements misled consumers because the product contains only 2 percent almonds and because the ads featured images implying that almonds could be “milked.” Alpro countered, however, that “almond milk” is “commonly used as a descriptor for this type of product,” with “the two leading international branded varieties both [having] an almond content of 2%.” “They explained the product was made by processing roasted almonds into a creamy paste, which was then blended with spring water and other ingredients and nutrients, but that no additional flavorings were added to the product,” according to ASA. “They said the number of almonds used defined the texture and taste intensity of the product and that consumers liked the product with 2% roasted almonds, which equated…
Health Canada has released an updated assessment of bisphenol A (BPA), concluding that dietary exposure through food sources “is not expected to pose a health risk.” The September 2012 assessment takes into account surveys performed after the agency issued its first conclusions in 2008, when it found “Probable Daily Intakes (PDI) for BPA of 0.18 µg/kg bw/day for the general population and 1.35 µg/kg bw/day for infants.” These surveys sought to measure concentrations of BPA in canned drink products, bottled water products, canned food products, and soft drink and beer products, as well as in total diet samples. Based on Health Canada’s probabilistic exposure assessment, the new survey results have revised the 2008 PDIs downward for both the general populations and infants. In particular, the agency reported a mean exposure to BPA of 0.055 µg/kg bw/day for the general population, “which is approximately 3 times lower than the intake calculated using…
The U.S. Department of Agriculture’s National Organic Program (NOP) has issued an interim rule extending the use of nutrient vitamins and minerals in organic handling while the agency considers a proposal to renew their exemption (use) on the National List of Allowed and Prohibited Substances (National List) for another five years. According to a September 27, 2012, Federal Register notice, the Agricultural Marketing Service (AMS) previously published a proposed rule during its 2012 sunset review that recommended continuing the use of nutrient vitamins and minerals “as ingredients in or on processed products labeled as ‘organic’ or ‘made with organic (specified ingredients or food group(s))’” after their National List exemption expired on October 21, 2012. The proposed rule also sought to correct “an inaccurate cross-reference to U.S. Food and Drug Administration (FDA) regulations in the listing for vitamins and minerals on the National List.” The interim rule will allow handlers and…
The Food and Drug Administration (FDA) has extended the comment period for an advanced notice of proposed rulemaking (ANPR) that announced potential changes to regulations governing new antimicrobial animal drug reporting. The ANPR proposed altering these regulations to incorporate the requirements of section 105 of the Animal Drug User Fee Amendments of 2008 (ADUFA 105). FDA has requested public comments “on how best to compile and present the summary information as directed by ADUFA 105, and on alternative methods available to the Agency for obtaining additional data and information about the extent of antimicrobial drug use in food-producing animals.” FDA has extended the comment period at the request of responders until November 26, 2012. See Federal Register, September 26, 2012.
