A federal court in California has denied the motion to dismiss filed by guacamole maker Yucatan Foods, L.P. in a putative class action alleging violations of labeling laws based on the company’s use of “evaporated cane juice” instead of “sugar” on product labels. Swearingen v. Yucatan Foods, L.P., No. 13-3544 (N.D. Cal., order entered February 7, 2014). So ruling, the court rejected Yucatan’s arguments that (i) the “home state” exception of the Class Action Fairness Act should apply and divest the federal court of jurisdiction because a nationwide class of consumers cannot be certified given that California law cannot regulate conduct unconnected to the state—the court found that resolution of this issue was not appropriate at the pleadings stage; (ii) federal law preempts the plaintiffs’ state law-based claims—the court determined that the claims rise and fall on the defendant’s compliance with federal law, thus the requirements the plaintiffs seek to…
Category Archives Issue 513
The U.K. Advertising Standards Authority (ASA) has upheld two complaints alleging that Heineken UK Ltd.’s print and TV advertisements gave the impression that its Kronenbourg 1664 beer was brewed in France and made primarily from French hops, despite text disclaimers stating that the product was “Brewed in the UK.” According to the February 12, 2014, ruling, the ads in question touted Kronenbourg 1664 as a “French beer… brewed with the aromatic Strisselspalt hop” sourced from Alsace, France. Although Heineken noted in its response that “Kronenbourg 1664 was an inherently French beer… first brewed in 1952 in Alsace by Brasseries Kronenbourg,” ASA ultimately agreed with complainants that the print ad’s “degree of emphasis… on the connection with France would lead consumers to believe that the entire brewing and manufacturing process took place in that country,” while the TV ad’s focus on the Strisselspalt hop “implied that all, or a significant majority…
Testifying before the House of Representatives Energy and Commerce Committee on February 5, 2014, U.S. Food and Drug Administration (FDA) Deputy Commissioner for Foods and Veterinary Medicine Michael Taylor said that, while the agency has enough resources to issue the final rules for the Food Safety Modernization Act (FSMA), it lacks the resources to implement them. “We will continue efforts to make the best use of the resources we have, but simply put, we cannot achieve FDA’s vision of a modern food safety system and a safer food supply without a significant increase in resources,” Taylor said in his testimony. When FSMA was approved in 2010, the Congressional Budget Office estimated that FDA would need an increase of more than $580 million to fund the expanded food safety activities. Noting that FDA “cannot do all that is asked without additional resources,” Taylor cited in particular new FSMA mandates regarding imported…
The U.S. Department of Health and Human Services (HHS) and the Department of Agriculture have announced a March 4, 2014, public meeting of the 2015 Dietary Guidelines Advisory Committee (DGAC). Accessible by webcast only, meeting agenda items include topic-specific presentations from guest experts; a review of committee work since the last public meeting; and future committee plans. Registration is required for web viewing. See Federal Register, February 11, 2014. Issue 513
The U.S. Department of the Treasury’s Alcohol and Tobacco Tax and Trade Bureau (TTB) has issued a revised interim policy on gluten content statements permitted in wine, distilled spirits and malt beverage labeling and advertising. TTB took the action after reviewing the U.S. Food and Drug Administration’s (FDA’s) final rule on the use of “gluten-free” on labels for products within that agency’s jurisdiction with the goal of making its approach “as consistent as possible with the regulations that FDA issued.” Thus, TTB Ruling 2014-2 supersedes TTB Ruling 2012-2; it remains an interim ruling, however, until “FDA issues a final rule or other guidance with respect to fermented and hydrolyzed products.” Under TTB’s revised interim policy, “the term ‘gluten-free’ may be used on labels and in advertisements if the product would be entitled to make a gluten-free label claim under the standards set forth in the new FDA regulations at 21…
The U.S. Occupational Safety and Health Administration (OSHA) has issued an interim final rule to establish procedures for handling retaliation complaints brought by whistleblowers who gained new protections under section 402 of the Food Safety Modernization Act (FSMA). Effective on February 13, 2014, the interim rule establishes procedures and time frames applicable to retaliation complaints, including rocedures and time frames for employee complaints to OSHA, OSHA investigations, appeals from OSHA determinations, administrative aw judge (ALJ) hearings, Administrative Review Board review of ALJ decisions, and judicial review of the labor secretary’s final decision. omments on the interim final rule are requested by April 14, 2014. FSMA protects employees from retaliation “by an entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food,” if the employees either provided or are about to provide their employer, the federal government or a state attorney general with information about Food,…
Following complaints that the Occupational Safety and Health Administration (OSHA) had improperly attempted to enforce workplace safety rules on farms with 10 or fewer employees, the U.S. Department of Labor (DOL) has assured members of the House Education & the Workforce Committee that OSHA will withdraw a June 2011 memorandum to regional administrators and state plan designees about limitations on their authority to “conduct enforcement activities at small farming operations during OSHA’s grain safety campaign.” DOL plans to issue new guidance in consultation with the U.S. Department of Agriculture and organizations representing farmers. Committee members contended that OSHA’s memorandum redefined “farming operations” to allow OSHA inspectors onto family farms. Their January 2014 letter stated that under OSHA’s “new and unprecedented logic, it appears anything outside of the actual growing of crops and raising livestock could be deemed ‘non-farming operations’ that would subject family farms to OSHA inspections. The guidance is…
A study published in the Bulletin of the World Health Organization has reported “a strong and positive association between fast food consumption and age-standardized mean BMI [body mass index]” in high-income countries, citing market deregulation as a possible factor in increased fast food consumption. Roberto De Vogli, et al., “The influence of market deregulation on fast food consumption and body mass index: a cross-national time series analysis, Bulletin of the World Health Organization, February 2014. In addition to analyzing data on fast food consumption and age-standardized BMI from 25 high-income countries, researchers apparently used the index of economic freedom (IEF) created by the Heritage Foundation and the Wall Street Journal to gauge the extent of market deregulation policies adopted by each country. According to the results, the average number of annual fast food transactions per capita increased from 26.61 to 32.76 between 1999 and 2008, while age-standardized mean BMI increased…
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