A federal court in California has narrowed the issues in litigation filed by Monster Beverage Corp. against Dennis Herrera, San Francisco’s city attorney, granting in part and denying in part Herrera’s motion to dismiss. Monster Beverage Corp. v. Herrera, No. 13-786 (C.D. Cal., order entered August 22, 2013). Additional details about the dispute between the litigants appear in issues 461, 482 and 483 of this Update. The court rejected Herrera’s claims that Monster Beverage lacked standing to bring a declaratory judgment action as to issues raised by his threats to sue the company if it fails to change its energy drink products by reducing the caffeine levels and to alter its labeling and advertising. The court also found that the issues are ripe, stating “The dispute here is not abstract and the lawsuit is not premature. The issue here, whether Monster must comply with Herrera’s demands pursuant to California state…
Category Archives Issue 496
A multidistrict litigation (MDL) court in New York has granted in part the motion to dismiss filed in a putative class action alleging that Frito-Lay North America and PepsiCo., its parent, mislead consumers by labeling various Tostitos®, SunChips® and Fritos Bean Dip® products as “all natural” when they contain genetically modified organisms (GMOs). In re Frito-Lay N. Am., Inc. All Natural Litig., MDL No. 2413 (E.D.N.Y., order entered August 29, 2013). The court dismissed PepsiCo, Inc. from the litigation without prejudice, finding that the complaint failed to allege sufficient facts to support its liability. Among other matters, the court refused to dismiss the suit on the basis of (i) the primary jurisdiction doctrine (noting that the issues do not require specialized knowledge to resolve and that “the FDA [Food and Drug Administration] is unlikely to respond in a timely manner to any referral from this Court”), (ii) preemption (finding that FDA’s…
The U.K. Food Standards Agency has reportedly issued a nationwide warning about misleading and illegal claims for manuka honey, a product derived from the manuka tree in southeastern Australia and New Zealand and endorsed by many celebrities who claim that it contains unique anti-bacterial and medicinal properties. According to news sources, manuka honey commands prices 10 to 20 times higher than other types of honey. Tests by the U.K. Food Environment Research Agency (Fera), New Zealand’s Unique Manuka Factor Honey Association (UMFHA) and others, however, suggest that many of the products labeled “manuka honey” contain none of its unique active properties, prompting industry leaders to demand a crackdown on a “potentially huge fraud.” Industry data have apparently revealed that New Zealand—the main source of manuka honey—produces only 1,700 tons of the honey each year, while consumption data show that an estimated 10,000 tons is sold worldwide annually, with 1,800 tons…
The European Chemicals Agency (ECHA) has announced a public consultation seeking feedback on a proposal submitted by the French Agency for Food, Environmental and Occupational Health and Safety (ANSES) to reclassify bisphenol A (BPA) based on its alleged reproductive toxicity. According to ECHA, the proposal would upgrade the harmonized classification and labeling (CLH) of BPA from reproductive toxicity category 2 (hazard statement code H361f, “suspected of damaging fertility”) to reproductive toxicity category 1B (hazard statement code H360F, “may damage fertility”). “France welcomes any new classification proposal for other endpoints such as carcinogenicity, development or lactation but believes that the emergency for regulating BPA is high enough justifying targeted CLH report and ATP inclusion at [sic] the first place,” states ANSES in its dossier, which includes an evaluation of BPA studies published since the last CLH evaluation was undertaken in 2002. In addition, ECHA has emphasized that the current public consultation…
The Food and Drug Administration (FDA) has announced an information collection requiring “renderers, feed manufacturers, and others involved in feed and feed ingredient manufacturing and distribution to maintain written procedures specifying the cleanout procedures or other means, and specifying the procedures for separating products that contain or may contain protein derived from mammalian tissue from all other protein products from the time of receipt until the time of shipment.”Intended to ensure compliance with regulations that prohibit certain animal proteins in ruminant feed to prevent the spread of bovine spongiform encephalopathy, the information collection will allow inspection personnel to confirm that an individual firm’s written procedures have been followed at the time of inspection. FDA has estimated that this information collection will involve an average annual burden of 14 hours per recordkeeping. Comments are requested by September 26, 2013. See Federal Register, August 17, 2013.
The U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) has issued a request for comments regarding changes to its procedure for Salmonella verification sampling of raw beef products. Among other things, FSIS stated that it will (i) begin “analyzing for Salmonella all raw beef samples that it collects for Shiga toxin-producing Escherichia coli (STEC) analysis,” including all raw ground beef, beef manufacturing trimmings, bench trim, and other raw ground beef components; (ii) increase the raw ground beef sample used for Salmonella analysis from 25 grams to 325 grams; and (iii) discontinue Salmonella sampling set procedures in ground beef products, except in those establishments that exceeded the standard for Salmonella in their most recent tests. FSIS intends to use the results from its verification sampling program to develop new Salmonella performance standards for ground beef products and to estimate Salmonella prevalence in raw ground beef and trimmings. Comments will be accepted…
U.S. Rep. Rosa DeLauro (D-Conn.) has sent an August 23, 2013, letter to U.S. Department of Agriculture (USDA) Under Secretary for Food Safety Elisabeth Hagen about “the ongoing problems with the Public Health Information System (PHIS) used by the Food Safety [and] Inspection Service (FSIS).” Citing reports that PHIS recently experienced a system-wide shutdown that lasted three days and allowed “millions of pounds of meat products” to leave processing plants without being tested for E. coli, DeLauro has asked USDA to provide a record of similar major incidents as well as an “analysis of the problems with the system, the impact on food safety and steps being taken to remedy these problems, including those related to software and connectivity.” She has also asked for details about the parameters of the PHIS contract “that ensure long-term solutions are made to issues that arise in the system,” in addition to “the metrics…
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