The Center for Food Safety has filed its reply to the Food and Drug Administration’s (FDA’s) request that a federal court in California reconsider the Food Safety Modernization Act implementation rulemaking deadlines it established for the agency. Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., filed August 2, 2013). Additional information about FDA’s motion appears in Issue 492 of this Update. While the center argues that FDA is attempting to re-litigate issues the court has already decided, it does not oppose a one-time, 60-day deadline extension for the food transportation rule. Meanwhile, FDA has issued notices extending until November 15, 2013, the comment periods on its proposed “Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food” and “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption.” According to FDA, the extension will allow stakeholders to consider the interrelationships between…
Category Archives Issue 493
A federal court in California has determined that EAS Consulting Group LLC and one of its employees, a former acting director in the Food and Drug Administration’s Office of Food Labeling, must be barred from discussing issues with plaintiffs’ counsel in litigation against Chobani, Inc. and are disqualified as experts in the case, finding that the regulatory consulting company improperly agreed to consult with plaintiffs’ counsel in consumer fraud litigation against food companies after discussing confidential litigation strategy and issues with Chobani’s defense counsel. Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal, San Jose Div., order entered August 2, 2013). Details about the litigation appear in Issue 491 of this Update. So ruling, the court denied Chobani’s request to disqualify plaintiffs’ counsel unless they communicate further with EAS about the issues in this putative class action without a waiver from Chobani. According to the court, while confidential information about the…
A federal court in Washington has dismissed without prejudice a number of claims in a putative class action alleging that the producer and seller of a vitamin water product misled consumers by failing to disclose that the product contains caffeine or its relative amount and falsely represents that the product is a “natural tonic” and contains “natural caffeine.” Maple v. Costco Wholesale Corp., No. 12-5166 (E.D. Wash., order entered August 1, 2013). While the court determined that the plaintiff had standing by rejecting Costco’s contention that the labeling on one product unit was not visible through the packaging encasing the variety packs in which it is sold, it found that federal law preempts claims that the defendants were required to disclose the presence of caffeine or state its relative amount in the drink. Among the claims that the court dismissed for insufficient pleading were (i) violation of the state’s consumer…
A federal court in California has dismissed with prejudice the breach of warranty claims made by a putative class as to purportedly “misbranded food products” sold by 7-Eleven, but dismissed the remaining consumer fraud claims without prejudice to allow the plaintiff to amend the complaint to meet the stringent pleading requirements for fraud-based allegations. Bishop v. 7-Eleven, Inc., No. 12-2621 (N.D. Cal., order entered August 5, 2013). While the plaintiff defined “misbranded food products” as pertaining to potato chips, pretzels and other foods labeled “0 grams Trans Fat,” “No Cholesterol,” “All Natural,” “Fresh to Go,” “guaranteed fresh,” or “Fresh,” as well as products “sold in oversized slack filled container,” the court determined that he failed to “provide a clear and particular account of the allegedly fraudulent, deceptive, misrepresentative, or otherwise unlawful statements” and failed to “unambiguously specify the particular products that have violated particular labeling requirements, the allegedly unlawful representations that…
A Florida-based import-export company has filed for Chapter 7 protection in bankruptcy court, listing more than $204 million in liabilities from litigation over its role in the import from China of powdered milk contaminated with melamine. In re Exim Brickell, LLC, No. 13-28502 (U.S. Bankruptcy Ct., S.D. Fla., filed August 3, 2013). Exim Brickell, LLC declared $300 in office furniture as its only asset. According to a news source, the 2008 tainted Chinese milk scandal, which affected hundreds of thousands of children in that country and killed six, resulted n verdicts and legal fees against the company as a result of litigation involving a Venezuelan company that recently won an appeal in their breach of contract dispute. See Law360, August 7, 2013. In a related development, a new milk contamination scandal has developed in China over whey protein concentrate potentially contaminated with the C. botulinum bacterium. The dairy farm near…
The Judicial Panel on Multidistrict Litigation (JPML) has denied transfer to a multidistrict litigation (MDL) court of consumer-fraud lawsuits involving Capatriti brand “100% Pure Olive Oil” made by Kangadis Food Inc. d/b/a The Gourmet Factory and numerous snack, cereal, protein bar, and frozen entrée products made by the Kashi Co. In re Capatriti Brand Olive Oil Mktg. & Sales Practices Litig., MDL No. 2469; In re Kashi Co. Mktg. & Sales Practices Litig., MDL No. 2456 (J.P.M.L., decided August 6, 2013). According to the court, centralization is not appropriate in the olive oil suit because the Southern District of New York action has made “significant progress” and the number of actions pending in adjacent districts is small with a “correspondingly limited number of involved counsel and courts.” Because the plaintiff in a New Jersey action has considered voluntarily transferring his action to New York, the JPML found that alternatives to centralization…
The U.K. Advertising Standards Agency (ASA) has ruled that pasta manufacturer NAH Foods, Ltd. cannot use a magazine ad for its “Slim Pasta” that features the heading “Zero Calorie Pasta?” and the subheading “UK & Ireland’s No.1 Best Selling Zero Calorie Pasta, Noodles & Rice” because tests of the product revealed that it actually contains 7.7 calories per 100 grams. In its defense, the company pointed out that the advertisement’s heading, “zero calorie pasta?”, contained a question mark and argued that it had not claimed “zero calorie pasta,” but ASA, while noting the question mark, decided that “consumers would infer that the advertiser was selling zero calorie pasta.” According to European regulation, a food can claim to be energy-free if it contains no more than 4 calories per 100 ml, and to make a low-energy claim, a food must contain no more 40 calories per 100 g for solid foods,…
The European Food Safety Authority (EFSA) has issued guidance principles for conducting two-year whole food studies “to assess the risk of cancer and/or toxicity from the long-term consumption of such foods by humans.” Acting at the behest of the European Commission, EFSA relied on testing guidance (TG) 453 from the Organization for Economic Co-operation and Development in addition to considering the views of member state experts consulted through the Scientific Network for the Risk Assessment of GMOs. The agency has cautioned, however, that testing individual chemicals in animal models “may result in adverse effects caused by dietary imbalance rather than any potential toxicity of the whole food itself,” urging researchers to carefully design studies to avoid this outcome and to use a larger number of animals when conducting whole food studies. “[I]t is essential that scientists implementing its guiding principles should define clear and specific objectives before starting a two-year…
The European Food Safety Authority (EFSA) has proposed adequate intake (AI) levels for fluoride and molybdenum as part of its effort to provide dietary reference values (DRVs) for micronutrients, including vitamin C, folate, iron, zinc, calcium, and iodine. Finalized by EFSA’s Panel on Dietetic Products, Nutrition and Allergies (NDA Panel) after a public consultation, the proposed AI for fluoride is 0.05 mg/kg body weight per day “for children aged 7 months to 17 years as well as adults, including pregnant and lactating women,” and the proposed AI for molybdenum is 65 micrograms per day for all adults and 10-65 micrograms per day for infants, children and adolescents. According to EFSA, the NDA Panel has already proposed DRVs for energy, macronutrients—protein, fats and carbohydrates—dietary fiber, and water. In turn, such DRVs are used “to establish reference values for nutrition labeling, for the assessment and planning of diets and for developing food-based…
According to a news source, restaurant chain T.G.I. Friday’s has agreed to make leave-policy changes affecting the employees working at its 272 company-owned facilities. The U.S. Department of Labor’s Wage and Hour Division apparently discovered violations of the federal Family and Medical Leave Act during an investigation of a company restaurant in Shreveport, Louisiana. The company had reportedly failed to reinstate an employee who took a legal leave under the law to the same or an equivalent position at the same pay and benefits, and had not allowed the employee to return immediately. The Labor Department determined that the restaurant owed the employee three weeks of lost wages. See The Kansas City Star, August 7, 2013.
