The American Tort Reform Foundation has published the 2013-2014 issue of its “Judicial Hellholes” report, placing California, in part for the many lawsuits against food and beverage companies filed there, at the top of the list of jurisdictions with “plaintiff-friendly consumer protection laws” and courts purportedly receptive to such lawsuits. According to the report, plaintiffs’ lawyers “have filed a surge of consumer class actions targeting what they have labeled as ‘Big Food’” in California courts. “Some of these claims are brought by veterans of lawsuits against the tobacco industry who are looking for the next deep pocket to sue. About a dozen plaintiffs’ law firms have taken to the courts with gusto, filing about 75 class action lawsuits between them in the past few years. By one count, which includes filings from additional firms, more than 100 consumer class actions were filed against food makers in 2012 alone, five times…
Category Archives Issue 508
Advocacy organizations including the Center for Food Safety and Food & Water Watch have filed an amicus brief to support an animal rights organization coalition’s challenge to a Utah law that criminalizes undercover investigations of meat and poultry processing facilities. Animal Legal Def. Fund v. Herbert, No. 13-0679 (D. Utah, brief filed December 17, 2013). Contending that the government has failed to prevent illegal animal-handling practices that ultimately threaten consumer safety and that consumers have the right to know how food is produced, the brief calls for the court to decide the challenge to Utah’s “ag-gag” law, Utah Code Ann. § 76-6-112, on the merits. Among other matters, amici refer to the undercover investigation conducted by the Humane Society of the United States in 2007 of a Hallmark/Westland facility and its conclusion in a U.S. Department of Agriculture ground-beef recall over concerns that the meat “did not receive complete and proper inspection…
A federal court in California has dismissed, without prejudice, the action for declaratory and injunctive relief brought against the San Francisco city attorney, seeking to halt his investigation of Monster Beverage’s energy drinks and efforts to regulate their formulation, labeling and promotion. Monster Beverage Corp. v. Herrera, No. 13-0786 (C.D. Cal., decided December 16, 2013). Additional information about the lawsuit appears in Issue 482 of this Update. The matter was before the court on the city attorney’s renewed motion to dismiss. Essentially, the court determined that the Younger abstention doctrine, which “counsels federal-court abstention when there is a pending state proceeding,” applied because a state action brought by the city attorney is pending, the action implicates important state interests, not all of the city attorney’s claims are preempted under federal food-labeling laws, and the state proceedings will be adequate for the consideration of Monster’s constitutional claims. Details about the city…
The Seventh Circuit Court of Appeals has determined that Phusion Projects’ commercial liability insurance carriers have no duty to defend the company in actions alleging that intoxication attributable to consumption of its Four Loko® alcoholic product caused death and personal injury. Netherlands Ins. Co. v. Phusion Projects, Inc., No. 12-1355 (7th Cir., decided December 16, 2013). Applying Illinois law, the court ruled that the liquor liability exclusions in the relevant insurance contracts unambiguously excluded coverage for bodily injury or property damage when the company “may be held liable by reason of: (1) causing or contributing to the intoxication of any person.” So ruling, the court affirmed the lower court’s grant of the insurance carriers’ motion for summary judgment. Issue 508
The New York City (NYC) Council has reportedly adopted legislation that would prohibit the use of foam food containers by 2015, if city sanitation officials determine that recycling the substance is not feasible. Favored by outgoing Mayor Michael Bloomberg, the legislation referred to as the Styrofoam ban—would include a six-month grace period, during which only warnings would be issued, as well as a hardship exemption for nonprofits and small businesses that could request a one-year renewable waiver. Bloomberg thanked the city council for approving the measure, saying “This legislation not only eliminates a product that cannot be recycled in New York City, it is a giant step forward in the City’s effort to recycle organic waste. Foam pollutes the waste stream, making it harder to recycle food waste as well as metal, glass and plastic.” See NYC Mayor Michael Bloomberg News Release and Law360, December 19, 2013. Issue 508
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has added diisononyl phthalate—a plasticizer used in food contact materials—to the list of chemicals known to the state to cause cancer. OEHHA’s Carcinogen Identification Committee determined that “the chemical was clearly shown, through scientifically valid testing according to generally accepted principles, to cause cancer.” The addition, made under the “state’s qualified expert” mechanism of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65), takes effect December 20, 2013. OEHHA will next set a safe exposure level for the chemical. See OEHHA News Release, December 12, 2013; Bloomberg BNA Product Safety & Liability Reporter, December 13, 2013. Issue 508
The Chinese Food and Drug Administration (CFDA) has announced a public consultation on a draft regulation, “Provisions on the Administration of the ‘Black List’ System for Food and Drug Safety,” that would give regulators the authority to blacklist companies that violate food safety laws. The regulation would allow information on manufacturers that violate laws and regulations concerning food, drugs, medical appliances, and cosmetics management, and receive administrative penalties, to be made public through government Websites. Producers and operators included on the “blacklist” would apparently face increased regulatory supervision. The draft regulation reportedly also covers food and beverage producers that fail to comply with production license requirements, mislabel products and do not respond appropriately to food safety incident cases. Companies using fallacious, unsubstantiated or misleading marketing would be ordered to suspend production and, in the case of serious breaches of regulations, have their business licenses revoked. Additions to the “blacklist” would…
The European Commission (EC) has published legislation listing the 10 smoke flavoring primary products authorized for use in food. According to Smoke Flavoring Regulation EC No. 2065/2003, these primary products include smoke condensates and tar fractions that can be used directly on foods such as meat and fish to impart a smoky flavor or in the production of derived smoke flavorings, which are then added to a variety of foods and sauces. Reflecting input from the European Food Safety Authority, the Commission’s latest list describes the maximum permitted level for each primary product and the foods to which they can be added. “When authorized smoke flavorings are used in or on food, their use must be in accordance with the conditions of use, including maximum levels, set in the Annex to this Regulation. When authorized smoke flavorings are used in combination, the individual levels should be reduced proportionally,” concludes the…
The European Commission (EC) recently proposed two draft directives that would prohibit the cloning of farm animals in the European Union (EU) as well as the importation of cloned animals. Designed to address animal welfare concerns and provide “legal certainty in this field,” the first directive would temporarily ban cloning techniques and the sale of live animal and embryo clones for commercial purposes, while the second directive would ensure that “food such as meat or milk from animal clones is not placed on the EU market.” At the same time, the Commission has also proposed revising current regulations to centralize the novel food authorization procedure at the EU level “with a view to improving access of new and innovative food to the EU market, while still maintaining a high level of consumer protection.” Under these revised rules, the European Food Safety Authority would perform the risk assessment for the novel…
The European Commission (EC) has published a report titled “Origin labelling for meat used as an ingredient: consumers’ attitude, feasibility of possible scenarios and impacts” that provides an overview of the potential consequences of mandatory origin labeling of meat used as an ingredient in food. Based on an independent study completed in July 2013, the report explores three scenarios: (i) maintaining current voluntary origin labeling; (ii) introducing mandatory labeling for EU/non-EU or EU/specific third country indication; and (iii) introducing mandatory labeling indicating the specific EU member state or the specific third country. Among other things, the findings revealed that (i) overall there is “strong” consumer interest in origin labeling; (ii) a considerable difference exists among European Union (EU) member states on consumer preferences and understanding of origin information as well as on the levels of motivation and reasons for wishing to have such information; and (iii) consumer interest for origin…
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