A federal court in California has preliminarily approved a $3 million settlement of claims by state Starbucks Corp. employees that the company denied them off-duty breaks because its busy stores were understaffed and the company required employees to take their breaks on-duty if only two employees were present. York v. Starbucks Corp., No. 08-7919 (C.D. Cal., order entered June 10, 2013). According to a news source, the court expressed some reservations about the incentive awards to the named plaintiffs, noting that the Ninth Circuit “seems to be taking an evermore-aggressive look at incentive awards and expecting the trial court to look closely at those things.” Additional information about the settlement appears in Issue 484 of this Update. See Law360, June 10, 2013.
Category Archives Issue 487
The Center for Food Safety and the Food and Drug Administration (FDA) have filed separate proposals to implement a court order requiring the agency to complete its rulemaking under the Food Safety Modernization Act (FSMA) after finding that FDA had violated the law by failing to meet its rulemaking deadlines. Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., proposals filed June 10, 2013). Additional information about the court’s order appears in Issue 481 of this Update. According to plaintiff’s proposal for injunctive relief, FDA “utterly fails to comply with the Court’s Order and FSMA,” because the agency has insisted on establishing “a schedule of target timeframes” that the agency “will endeavor to meet” with caveats that could require new timeframes. The Center proposes May 1, 2014, as the date on which seven final implementing rules must be submitted to the Federal Register. It would add an additional year to…
A federal judge in California has notified the parties to a consumer-fraud action against the company that makes Mission® tortilla chips of her inclination to stay the litigation for six months and refer to the Food and Drug Administration (FDA) the question “whether products containing GMO [genetically modified organisms] or bioengineered ingredients may properly be labeled ‘Natural’ or ‘All Natural.’” Cox v. Gruma Corp., No. 12-6502 (N.D. Cal., notice filed June 7, 2013). The plaintiffs have opposed the tentative stay order, arguing that a prompt regulatory determination is unlikely given FDA’s past inaction on the matter. They reportedly cited a recent Florida decision denying a soup company’s motion to dismiss similar litigation on preemption grounds because FDA does not regulate “Natural” or “All Natural” food labeling claims. The court, however, cited a Ninth Circuit ruling deferring to FDA’s regulatory authority so that the agency’s “considered judgments” would not be undermined…
A federal court in California has denied the class certification motion filed by a woman who sought to represent anyone in the state who had purchased products in entire beverage lines produced by the defendant, because she had purchased just five specific products and thus her labeling and misbranding claims were not typical of those of the putative class. Major v. Ocean Spray Cranberries, Inc., No. 12-3067 (N.D. Cal., decided June 10, 2013). The amended complaint alleged that the company’s juice and drink products were unlawfully labeled “No Sugar Added” or had improper nutrient claims or false representations that the products were “free from artificial colors, flavors or preservatives.” While the plaintiff had purchased five beverages, including a Diet Sparkling Pomegranate Blueberry drink, she sought to certify a class of purchasers of entire product lines, such as 100% juice and Sparkling. According to the court, the plaintiff “has not met her…
The Federal Circuit Court of Appeals has affirmed a district court’s dismissal of the declaratory judgment action brought by a number of organizations representing the interests of organic farmers. Organic Seed Growers & Trade Ass’n v. Monsanto Co., No. 2012-1298 (Fed. Cir., decided June 10, 2013). The farmers sought a declaration of non-infringement and invalidity with respect to 23 patents on various crops, including soybeans and corn. Details about the lower court’s ruling appear in Issue 429 of this Update. According to the Federal Circuit, “Monsanto has made binding assurances that it will not ‘take legal action against growers whose crops might inadvertently contain traces of Monsanto biotech genes (because, for example, some transgenic seed or pollen blew onto the grower’s land), and [the organic farmers] have not alleged any circumstances placing them beyond the scope of those assurances.” The court agreed with the district court that there was no…
A unanimous U.S. Supreme Court has determined that the Ninth Circuit erred by failing to consider the unconstitutional takings defense raised by raisin growers who were subject to penalties and assessments for failure to pay assessments and set aside reserve-tonnage raisins under a Depression-era program intended to stabilize prices for agricultural commodities by limiting their quantity in the domestic competitive market. Horne v. USDA, No. 12-123 (U.S., decided June 10, 2013). Pursuant to the Tucker Act, claims “for just compensation under the Takings Clause must be brought to the Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant statute.” The Court found that the Agricultural Marketing Agreement Act (AMAA) of 1937 displaces Tucker Act jurisdiction and, because the raisin growers had no alternative remedy, “their takings claim was not ‘premature’ when presented to the Ninth Circuit.” The Court…
The Food and Drug Administration (FDA) has issued a final rule that amends color additive regulations to provide for “the safe use of mica-based pearlescent pigments prepared from titanium dioxide and mica as color additives in distilled spirits containing not less than 18 percent and not more than 23 percent alcohol by volume but not including distilled spirits mixtures containing more than 5 percent wine on a proof gallon basis.” The action follows a petition filed by E. & J. Gallo Winery and takes effect July 15, 2013. See Federal Register, June 12, 2013.
The U.S. Department of Treasury’s Alcohol and Tobacco Tax and Trade Bureau (TTB) has issued a final rule amending the mandatory labeling requirements for wine to permit alcohol content “to appear on other labels affixed to the container rather than requiring it to appear on the brand label.” Effective August 9, 2013, the final rule seeks to provide greater flexibility in wine labeling “and will conform the TTB wine labeling regulations to the agreement reached by the members of the World Wine Trade Group [WWTG] regarding the presentation of certain information on wine labels.” According to TTB, the WWTG Agreement on Requirements for Wine Labeling specifies that all wine labels must display the following common mandatory information (CMI): (i) country of origin, (ii) alcohol content (percentage by volume), (iii) net contents, and (iv) product name. Under the agreement, all four of the CMI elements must appear in a “single field…
Sen. Dianne Feinstein (D-Calif.) has introduced legislation (S. 1124) that would require warning labels on all food packaging made with bisphenol A (BPA). Titled the “BPA in Food Packaging Right to Know Act,” the bill would require such packaging to bear labels stating, “This food packaging contains BPA, an endocrine-disrupting chemical,” in addition to directing the Department of Health and Human Services to conduct a safety assessment of food containers with BPA. Citing more than 200 scientific studies that have purportedly linked BPA exposure to cancer, reproductive disorders, cardiac disease, diabetes, early puberty, and other problems, Feinstein said, “evidence continues to mount that BPA exposure is a risk to human health, especially for children . . . [and] it is essential that consumers know what chemicals are in the products they purchase. Our children should not be used as guinea pigs by chemical companies when their parents are left in…
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