The Second Circuit Court of Appeals has certified to the New York Court of Appeals questions arising under state employment law in a dispute over the distribution of tips in Starbucks stores. Barenboim v. Starbucks Corp., No. 10-4912; Winans v. Starbucks Corp., No. 11-3199 (2d Cir., questions certified October 23, 2012). A federal district court determined that Starbucks properly distributed pooled tips to shift supervisors and that Starbucks was not required to include assistant store managers in its tip pools. The appellants in the consolidated appeals are a putative class of baristas who allege that shift supervisors are “agents” under New York Labor Law § 196-d and ineligible to share tips, and a putative class of assistant store managers who claim they are entitled to share in the tip pools because they perform the same tasks as baristas and have only limited management authority. The plaintiffs in both cases sought review…
Category Archives Issue 459
According to University of Oklahoma College of Law Professor Drew Kershen, writing for the Giannini Foundation of Agricultural Economics publication Agricultural and Resource Economics, if California voters approve Proposition 37 (Prop. 37) in November 2012, it could be vulnerable to challenge under World Trade Organization (WTO) agreements. As Kershen notes, the ballot proposition would “impose mandatory labeling on a broad range of raw and processed foods.” Those produced “entirely or partially” through genetic engineering would be required to state that fact on product labels, and no processed food could be marketed as “natural,” “naturally made,” “naturally grown,” or “all natural.” Kershen focuses on the WTO Agreement on the Application of Sanitary and Phytosanitary (SPS) Measures and the Agreement on Technical Barriers to Trade (TBT). While the United States, but not California, is a member state under the agreements, Kershen argues that they nevertheless apply to California’s Prop. 37. He contends that…
The U.K. Department of Health (DOH) has announced a voluntary front-of-pack (FOP) nutrition labeling scheme designed to “clearly” display the amount of fat, saturated fat, salt, sugar, and calories contained in food products. According to an October 24, 2012, press release, the proposed system will use color coding, guideline daily amounts and “high/medium/low” text to help consumers “make quick, informed decisions about the food they eat.” The announcement apparently followed a three-month consultation with retailers, manufacturers and other stakeholders about the future of FOP labeling. Although DOH will continue to meet with industry about the system’s final design, it evidently plans to launch the initiative as early as summer 2013. “The U.K. already has the largest number of products with front-of-pack labels in Europe but research has shown that consumers get confused by the wide variety of labels used,” said Public Health Minister Anna Soubry. “By having a consistent system…
The European Food Safety Authority’s (EFSA’s) Dietary and Chemical Monitoring Unit has issued an updated report finding little change in the amount of acrylamide produced during food processing since the last data set was released in 2008. Covering 2007-2010, the report used approximately 13,000 data points to monitor the substance, which “typically forms in starchy food products such as potato crisps, French fries, bread, biscuits and coffee, during high-temperature processing, including frying, baking and roasting.” Although EFSA apparently received less input from member states in 2010 than in previous years, it did not find “any considerable change” in acrylamide levels between 2007 and 2010 “for the majority of the food categories assessed.” “In terms of the results, there were downward trends in acrylamide levels in the category ‘processed cereal-based foods for infants and young children’ and the sub-categories ‘non-potato based savory snacks’ and ‘biscuits and rusks for infants and young…
Public Employees for Environmental Responsibility (PEER) has posted to its website documents relating to the use of antimicrobial drugs in livestock feed received from the Food and Drug Administration (FDA) under a Freedom of Information Act request. According to PEER, internal memos show that FDA is not, as the agency has claimed, working successfully with industry to phase out this use of antimicrobials, estimated at 30 million pounds in feed troughs annually. PEER claims that “70,000 Americans die each year from drug-resistant infections” and that the “rise of drug-resistant ‘super diseases’ is driven by overuse and misuse of antimicrobial drugs in livestock feed primarily to promote livestock growth.” In litigation, FDA defended its failure to timely follow through on proceedings to withdraw from use two antimicrobials by claiming that it had abandoned formal rulemaking in favor of more effective voluntary measures. Details about a court order requiring that FDA initiate…
The Federal Trade Commission (FTC) has issued a staff report outlining best practices for the use of facial-recognition technology in online social networks, mobile apps, digital signs, and other products and services. According to an October 22, 2012, FTC press release, facial recognition technology has “a number of potential uses, such as determining an individual’s age range and gender in order to deliver targeted advertising; assessing viewers’ emotions to see if they are engaged in a video game or a movie; or matching faces and identifying anonymous individuals in images.” But the agency has also expressed concern that these advances could contravene consumers’ expectations of privacy because they hold “the prospect of identifying anonymous individuals in public, and because the data collected may be susceptible to security breaches and hacking.” FTC is urging companies that use facial-recognition technology to (i) “design their services with consumer privacy in mind”; (ii) “develop reasonable…
U.S. Representatives Henry Waxman (D-Calif.) and Diana DeGette (D-Colo.) have sent letters to eight companies requesting information about arsenic levels in rice products. Waxman and DeGette have asked Beech-Nut Nutrition Corp., Carolina Rice, Della Rice, Earth’s Best, Nestlé Nutrition’s Gerber Rice, Jazzmen Rice, Martin Farms, and Whole Foods Market to respond by November 8, 2012, with details about their practices for monitoring and limiting the amount of arsenic in their rice products. In requesting this information, Waxman and DeGette pointed to studies authored by the Food and Drug Administration (FDA) and Consumer Reports purportedly showing “worrisome” levels of inorganic arsenic “in popular brands of rice and rice products like rice cereal, breakfast cereal, and rice cakes.” The lawmakers have requested all company documents related to arsenic testing as well as those describing any health risk assessments undertaken on each company’s behalf. “FDA is currently in the process of analyzing 1,000 more rice…
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