According to a news source, trial begins April 8, 2013, in the Environmental Law Foundation’s Proposition 65 (Prop. 65) lawsuit against 28 food manufacturers and retailers in a California state court, alleging failure to warn the public that their baby and toddler foods and fruit juices contain lead, a chemical known to the state to cause reproductive toxicity or cancer. Envtl. Law Found. v. Beech-Nut Nutrition Corp., No. 11-597384 (Cal. Super. Ct., Alameda Cty., filed Sept. 28, 2011). Details about the case appear in Issue 412 of this Update. The trial will involve the manufacturing defendants and will resolve their affirmative defenses only. Trials over damages issues and claims against the retailers have not apparently been scheduled. Among the defenses that the court will consider are whether (i) Prop. 65, as applied, is preempted under the Food, Drug, and Cosmetic Act and federal nutrition programs; (ii) exposure to the products’ lead levels…
Category Archives Issue 478
A federal court in California has dismissed in part the first amended complaint in a putative class action against Frito-Lay and PepsiCo, alleging that the companies falsely advertised and labeled their products as “All Natural,” “0 Grams Trans Fat,” “No MSG,” “low sodium,” “healthy,” and with other unspecified health claims. Wilson v. Frito-Lay N. Am., Inc., No. 12-1586 (N.D. Cal., order entered April 1, 2013). Dismissed with prejudice were claims that the companies breached warranties under the Magnuson-Moss Warranty Act and the Song Beverly Consumer Warranty Act. Among the claims that the plaintiffs will be allowed to amend are the allegations against PepsiCo, dismissed due to insufficient pleading; allegations involving products not specifically named or described in the complaint; and a claim for restitution based on unjust enrichment, which should have been pleaded in the alternative. To the extent that the plaintiffs based their unfair, false and deceptive advertising claims…
A federal court in California has decertified and entered summary judgment against a statewide class alleging that AriZona Iced Tea beverages with “All Natural,” “100% Natural” and “Natural” labels violated state consumer protection laws because they contain high fructose corn syrup (HFCS) and citric acid, ingredients alleged by the plaintiffs to be man-made. Ries v. AriZona Beverages USA LLC, No. 10 01139 (N.D. Cal., decided March 28, 2013). Additional information about this case and similar litigation before a New Jersey court appears in issues 360, 408 and 463 of this Update. According to the court, the plaintiffs failed to produce any evidence or timely identify any expert who could prove that HFCS and citric acid are not natural. They claimed that they would be able to do so during the “merit state of discovery,” but failed to produce such evidence within the court’s discovery deadlines. Nor, according to the court,…
The D.C. Circuit Court of Appeals has ruled that the Freedom of Information Act (FOIA) requires federal agencies to issue a determination about what will be produced to or withheld from a FOIA requester within statutory deadlines; a failure to do so is deemed the exhaustion of administrative remedies and allows the requester to bring an action in federal court to compel the production of responsive documents. Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm’n, No. 12-5004 (D.C. Cir., decided April 2, 2013). The Federal Election Commission (FEC) contended that it could simply inform a FOIA requester within the 20-day deadline (or 30 days in “unusual circumstances”) that it would produce non-exempt responsive documents and claim exemptions in the future. According to the court, FEC’s interpretation of the statute would allow an agency to “keep FOIA requests bottled up in limbo for months or years on end.” FEC claimed…
The California Assembly’s Environmental Safety and Toxic Materials Committee has scheduled an April 16, 2013, hearing on a bill (A.B. 227) intended to give small business owners two weeks to correct a purported violation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) without incurring any liability under the law. The measure was introduced by Assemblyman Mike Gatto (D-Silver Lake) at the request of a coffeehouse owner who received a 60-day legal notice after he started serving alcoholic beverages without the requisite Prop. 65 warning to customers about chemicals, such as alcohol, known to the state to pose a cancer or reproductive health risk. If the letter recipient demonstrates to the satisfaction of a city attorney, local district attorney or state attorney general that the violation has been corrected, no further enforcement action could be taken. As currently drafted, the bill would provide a safe harbor…
The Food and Drug Administration (FDA) has announced the availability of “Draft Compliance Policy Guide Sec.100.250 Food Facility Registration— Human and Animal Food” (draft CPG), which aims to “provide guidance for FDA staff regarding enforcement of the food facility registration provisions under a section [415] of the Federal Food, Drug, and Cosmetic Act .” To this end, the draft CPG outlines how FDA plans to implement provisions establishing food facility registration requirements as well as “FDA’s authority to suspend a food facility’s registration.” According to FDA, the finalized CPG “will replace ‘Compliance Policy Guide Sec.110.300 Registration of Food Facilities Under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002.’” Comments should be submitted by May 6, 2013. See Federal Register, April 4, 2013.
The U.S. Department of Agriculture’s (USDA’s) Agricultural Marketing Service (AMS) has announced the availability of draft guidance concerning (i) “the classification of materials under USDA organic regulations (7 CFR part 205)” and (ii) “materials for use in organic crop production.” In particular, the first set of guidance “details the procedures and decision trees for classifying the materials used for organic crop production, livestock production, and handling,” while the second set includes “an itemization of allowed natural and synthetic materials and a limited appendix of materials prohibited in organic crop production.” AMS has asked “accredited certifying agents, certified operations, material evaluation programs, and other organic industry stakeholders” to submit comments on these documents through June 3, 2013. The agency will eventually publish the finalized version as part of the National Organic Program’s handbook for certifying agents and certified operations. See Federal Register, April 2, 2013.
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) recently issued a notice directing import inspectors to increase “species sampling and testing” on products from countries affected by the European Union’s ongoing investigation into beef contaminated with horsemeat. According to the new order, FSIS has scheduled “increased species sampling for product from Iceland, Ireland, Poland, the United Kingdom, and Northern Ireland via PHIS [Public Health Information System],” but dropped Brazil from the list of those countries requiring special attention from inspectors. “We are confident that the inspection system at ports of entry ensures the safety of products that come into our country every day,” said FSIS spokesperson Catherine Cochran. “However, in response to recent events and consumer concerns, we are increasing species testing to enhance current safeguards and prevent fraudulently labeled products from entering the country.” See Bloomberg, April 4, 2013.
A U.S. Department of Agriculture Office of Inspector General audit report titled “FSIS E. coli Testing of Boxed Beef” concludes that the Food Safety and Inspection Service (FSIS) must reevaluate its E. coli testing methodology and “take additional steps to ensure that beef to be ground throughout the production process—from Federally inspected slaughter establishments to local grocery stores—be subject to FSIS sampling and testing for E. coli.” According to the report, “FSIS is not testing tenderized meat products for E. coli despite several recent recalls.” The Kansas City Star noted that the report was issued three months after the newspaper published a series of stories profiling individuals who had apparently been sickened with E. coli poisoning after consuming medium-rare, mechanically tenderized steaks in restaurants. The article highlighted that “the process of mechanically blading that meat uses automated needles or knives to tenderize tougher cuts of beef, forcing pathogens into the…
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