A federal court in California has rendered its reluctant approval of a preliminary settlement in class litigation against Kellogg Co., alleging that the company falsely advertised its cereal product as a food that could help improve children’s attentiveness by 20 percent. Dennis v. Kellogg Co., No. 09-1786 (S.D. Cal., order entered May 3, 2013). The matter had been remanded from the Ninth Circuit, which reversed an earlier settlement approval, finding that the cy pres distribution to organizations helping the indigent of funds remaining after the class claims were paid had not been properly assigned. Additional information about the Ninth Circuit’s decision appears in Issues 447 and 453 of this Update. The district court observes that the new designated cy pres recipients, the Consumers Union, Consumer Watchdog and Center for Science in the Public Interest, are appropriate as consumer-protection organizations, but expresses its dismay over the decrease in cash value to…
Category Archives Issue 483
Lawmakers in Maryland have passed a bill (S.B. 374) requiring the Office of the Attorney General to assemble and direct a workgroup to explore issues relating to the protection of children’s online privacy. The legislation requires that the workgroup include state government representatives, industry leaders, children’s online privacy experts, and consumer and children’s health advocates. Among other things, the workgroup will examine (i) the nature and extent of data collected about children through Internet–based and mobile application–based advertising; (ii) “current and forthcoming federal and state regulation of children’s online privacy and online advertising and associated data collection”; (iii) the effects on children of online advertising; and (iv) best practices to protect children’s online privacy. The law takes effect on June 1, 2013, and requires that the Attorney General’s Office report findings and recommendations to the Senate Finance Committee and House Economic Matters Committee by December 31.
Working through California’s Environmental Protection Agency, Gov. Jerry Brown (D) will collaborate with stakeholders and the legislature to advance Proposition 65 (Prop. 65) reforms that would end frivolous “shake-down” lawsuits, improve warnings about dangerous chemicals and strengthen the science that supports warning levels. The governor will have to convince environmental and consumer groups that the reforms are needed; any changes will apparently require the approval of at least two-thirds of both legislative houses, and supporters believe that the current law works well to force businesses to cease making products with chemicals known to the state to cause cancer or reproductive toxicity. Numerous lawsuits have been filed against food companies under the law since it was adopted in 1986 for various substances found in foods, including acrylamide, MEI-4 and lead. According to a May 7, 2013, press release, the governor will seek to (i) cap or limit attorney’s fees in Prop.…
The European Food Safety Authority (EFSA) recently announced its decision to delay its final opinion on the safety of aspartame until November 2013 “to allow sufficient time to consider and address feedback, including new information, resulting from the public consultation on its draft opinion.” According to the agency, the Scientific Panel on Food Additives and Nutrient Sources Added to Food (ANS Panel) received more than 200 comments on its January 9, 2013, draft opinion “on issues such as how EFSA’s experts select studies for its risk assessments, the safety of the metabolites of aspartame and how best to express uncertainties highlighted in the draft opinion.” Based on this feedback, ANS Panel experts have purportedly “identified aspects of their draft opinion and key steps in their scientific approach that they would like to clarify further, including the expression of uncertainties, before finalizing their conclusions.” Finding that aspartame and its breakdown products “pose…
The European Commission (EC) has introduced a “landmark package to modernize, simplify and strengthen the agri-food chain in Europe” by reducing the number of food and feed regulations from 70 pieces to five. In addition to addressing regulatory enforcement and funding, the proposed package describes new procedures, preventative measures and risk-based controls related to plant and animal health, including plant reproductive materials. Among other things, the recommendations discuss (i) combining animal health regulations under a single piece of legislation focused on preventative efforts, livestock traceability and disease prioritization; (ii) upgrading the plant health regime to increase surveillance of both domestic and imported crops; and (iii) implementing “more simplified and flexible rules for the marketing of seeds and other plant reproductive material… to ensure productivity, adaptability and diversity of Europe’s crop production.” To finance these goals and improve accountability, the new rules would change the way member states fund official controls…
The Congressional Research Service (CRS) recently issued a report to explore whether U.S. Department of Agriculture (USDA) proposed rules on labeling muscle cuts of meats will comply with World Trade Organization (WTO) findings that current country-of-origin labeling (COOL) requirements discriminate against livestock imports. Titled “Country-of-Origin Labeling for Foods and the WTO Trade Dispute on Meat Labeling,” the report reviews events that led to the WTO ruling which followed a challenge filed by Canada and Mexico to the 2008 farm bill amendments that adopted the disputed COOL provisions. A WTO arbitrator established May 23, 2013, as the deadline for the United States to comply. Various stakeholders have apparently presented a number of options to bring the United States into compliance, and USDA issued a proposed rule in March. Canada and Mexico have evidently argued that the proposed rule does not fulfill U.S. WTO obligations, and the CRS report notes that this…
U.S. Reps. Rosa DeLauro (D-Conn.) and Frank Pallone Jr. (D-N.J.), have written a letter to the Office of Management and Budget asking for the release of the Food and Drug Administration’s (FDA’s) voluntary industry guidelines for levels of arsenic in fruit juices currently under review by the Office of Information and Regulatory Affairs. Citing studies that have found “concerning” levels of arsenic in food and beverages, DeLauro and Pallone assert that FDA’s guidance document will be “instrumental” to industry members and consumers in their efforts to address “this public health issue.” It is “inexcusable that the guidelines are stalled while consumers continue to be exposed to potentially dangerous levels of arsenic,” the letter states. “Inorganic arsenic is a known carcinogen that can increase the risk of bladder, lung and skin cancers, [which is] particularly concerning because children consume large quantities of juice and may be at risk for more harmful…
Sens. Kirsten Gillibrand (D-N.Y.), Dianne Feinstein (D-Calif.) and Susan Collins (R-Maine) have introduced bipartisan legislation to combat antimicrobial drug resistance by requiring the Food and Drug Administration (FDA) to report more information on the annual sales of antibiotics used among industrial farm animals. The “Antimicrobial Data Collection Act” would also reportedly give the agency a deadline to finalize policies proposed in 2012 that would eliminate the use of antibiotics for growth-promoting uses. “Antimicrobial resistance is a public health concern that needs to be adequately addressed,” Gillibrand said in a statement. “Increased data collection, transparency, and accountability are part of a comprehensive solution that will help protect American citizens from drug resistant microbes, saving lives and tax dollars.” “Our bill would not create any new reporting requirements for drug companies, feed mills, or farmers. It would only require the FDA to provide more transparency in reporting the antimicrobial data which is already being reported to it,”…
The Federal Trade Commission (FTC) has issued guidance to answer stakeholder questions about changes to the Children’s Online Privacy Protection Act (COPPA) slated to take effect on July 1, 2013. According to FTC, the new rules apply not only to the operators of Websites and mobile apps directed at children younger than age 13, but the operators of general audience sites and apps “with actual knowledge that they are collecting, using, or disclosing personal information from children under 13,” as well as third-party operators “that have actual knowledge that they are collecting personal information directly from users of another Web site or online service directed to children.” In addition to describing the types of personal information covered by COPPA, which for the first time will class IP addresses as persistent identifiers, the guidance addresses, among other things, (i) new online privacy policy rules, including requirements for displaying the policy; (ii)…
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