A federal court in Minnesota has dismissed without prejudice state law-based consumer-fraud claims filed against a company that makes Greek yogurt not by straining it, a process essential to the traditional production of this thickened dairy product, but by adding milk protein concentrate (MPC). Taradejna v. General Mills, Inc., No. 12-993 (D. Minn., decided December 10, 2012). So ruling, the court directed the parties to initiate proper proceedings before the Food and Drug Administration (FDA). The court recites FDA yogurt-related standard-of-identity initiatives since 1981, culminating in a pending 2009 proposal that would permit the use of “any safe and suitable milk-derived ingredient as an optional dairy ingredient in the manufacture of yogurt.” Finding that application of the primary jurisdiction doctrine was appropriate in the matter, the court states, “The underlying issue here is whether MPC is a proper, permitted ingredient in yogurt. The resolution of this question falls squarely within the…
Category Archives Issue 465
A multidistrict litigation (MDL) court that is considering pretrial matters in 91 consolidated antitrust lawsuits alleging that major chocolate manufacturers conspired to implement price increases from 2002 through 2007, has granted the direct-purchaser plaintiffs’ motion for class certification. In re Chocolate Confectionery Antitrust Litig., MDL No. 1935 (M.D. Pa., order entered December 7, 2012). The court did so after first determining whether the plaintiffs’ expert testimony in support of class certification is reliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The U.S. Supreme Court is currently facing a similar issue, that is, “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” The MDL court, noting that the issue has not yet been decided in…
David Egilman, whose expert testimony was deemed inadmissible in proceedings involving a consumer’s exposure to the butter-flavoring chemical diacetyl in microwave popcorn, has filed a petition for writ of certiorari (No. 12-697) in the U.S. Supreme Court. He asks, “Whether a nonparty to a district court proceeding has a right to appeal a decision that adversely affects his interest, as the Second, Sixth, and D.C. Circuits hold, or whether, as six other circuit courts hold, the nonparty must intervene or otherwise participate in the district court proceedings to have a right to appeal.” He was apparently retained by a couple seeking to recover for the lung injury sustained by the husband, but the district court found his testimony inadmissible and granted summary judgment for the manufacturers. According to Egilman’s petition, the district court did not confine itself to a traditional reliability inquiry, but “attacked the character and professionalism of the expert…
Chicago’s City Council has reportedly approved an ordinance that will impose new nutrition rules on most food and drinks sold from 350 vending machines in 94 city buildings, setting restrictions on fat, calories, sugar, and sodium. The new ordinance applies to vending machines in city-owned and -leased buildings and takes effect January 2013. In a recent press release, Mayor Rahm Emanuel (D) said that the changes aim to encourage personal responsibility. “These new vending machines will make it easier than ever before for city employees and the public to make healthy lifestyle choices,” he said. “When city employees take their wellness into their own hands, we can reduce health care costs and also serve as a model for the residents of Chicago when it comes to making health choices.” Many health advocates have purportedly said that it makes sense to set standards for machines aimed at children and at city…
Russian health regulators have announced a new regulation that will require imported meat to undergo testing for and be certified free of ractopamine, a hormone that has reportedly been linked to health concerns. The additive allegedly promotes animal growth and leaner meat and is added to some animal feed in the United States. According to news sources, because the U.S. Department of Agriculture (USDA) has no mechanism in place certifying meat as “ractopamine free,” the Russian requirement could effectively halt U.S. pork and beef exports to the country, profoundly affecting the more than $500 million market. Some industry analysts reportedly see the move as retaliation for American legislation punishing Russian officials linked to alleged human rights violations. In a recent press release, U.S. Agriculture Secretary Tom Vilsack stated, “The United States is very concerned that Russia has taken these actions, which appear to be inconsistent with its obligations as a…
The Food and Drug Administration (FDA) has extended for five years a 2007 food safety agreement with the General Administration of Quality Supervision, Inspection, and Quarantine of China (AQSIQ) to “enhance cooperation between the U.S. and China on food and feed safety.” The agreement includes provisions enhancing FDA’s “ability to identify high-risk food products entering the United States from China,” facilitating food facility inspections, focusing on “high-risk foods,” and creating processes for FDA to “accept relevant, verified information from AQSIQ regarding registration and certification.” See CFSAN Constituent Update, December 11, 2012.
The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) has requested an extension of approval of an information collection associated with the regulations for the introduction of organisms and products altered or produced through genetic engineering. The regulations set forth “the permit application requirements and the notification procedures for the importation, interstate movement, or release into the environment of a regulated article and necessitate certain information and recordkeeping requirements, including APHIS issued permits, applicants’ field testing records, and the submission of protocols to ensure compliance.” APHIS is asking the Office of Management and Budget to approve its use of these information collection activities for an additional three years. The agency will consider comments received by February 11, 2013. See Federal Register, December 11, 2012.
The U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) has announced that, as of February 8, 2013, it will require producers of non-intact raw beef and all ready-to-eat products containing meat and poultry to hold shipments until they pass agency testing for foodborne pathogens. FSIS announced its plan to implement this policy in April 2011. In the past, FSIS’s practice has apparently been “to allow products tested for adulterants to bear the mark of inspection, and to enter commerce, even when test results have not been received.” FSIS had asked, but not required, official establishments to maintain control of products tested for adulterants pending test results. According to FSIS, “because establishments, including official import inspection establishments, were not consistently maintaining control of product, despite FSIS’s request that they do so, adulterated product was entering commerce.” FSIS has reportedly stated that if the new requirement had been in place…
The Federal Trade Commission (FTC) has released a December 2012 staff report finding that only 20 percent of the 400 children’s mobile applications under review “contained any privacy-related disclosure on the app’s promotion page, on the developer website, or within the app.” Titled “Mobile Apps for Kids: Disclosures Still Not Making the Grade,” the report also warned that even when privacy policies were provided, they were often “long, dense and technical” or lacking in “basic details, such as what specific information about a child would be collected, the reason for collecting such information, or what parties would obtain the information.” According to FTC staff, its testing results evidently revealed that 59 percent of the 400 apps “transmitted some information from a user’s mobile device back to the developer or a third-party,” with 5 percent transmitting the device ID to developers; 56 percent transmitting the device ID to advertising networks, analytics…
The President’s Council of Advisors on Science and Technology (PCAST) has issued a report urging the federal government to launch “a coordinated effort to boost American agricultural science by increasing public investments in that economically important domain and rebalancing the U.S. Department of Agriculture’s research portfolio.” According to a press release from the Executive Office of the President, the report also calls for the creation of a network of public-private agricultural “innovation institutes” to leverage the strengths of government scientists and commercial interests. PCAST concludes that “the United States is the undisputed world leader in agricultural production today, but also cautions that U.S. agriculture also faces a number of challenges that are poised to become much more serious in the years ahead.” These challenges include (i) managing new pests, pathogens and invasive plants; (ii) increasing the efficiency of water use; (iii) reducing the environmental footprint of agriculture; (iv) adapting to a…
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