A federal court in California has granted a motion for sanctions filed by Jackson Family Wines, which brought an infringement action against Diageo North America; an adverse inference instruction will be given to the jury during trial, and the plaintiff will be able to recover the costs of its efforts to secure a Diageo marketing department employee’s documents, destroyed while the lawsuit was pending. Jackson Family Wines v. Diageo N. Am., Inc., No. 11-5639 (N.D. Cal., order entered February 14, 2014). At issue in the litigation is the alleged infringement of Jackson’s La Crema wine by Diageo’s Crème de Lys wine brand. The employee whose laptop was “imaged” outside the firm after she temporarily left Diageo’s employ was, in Diageo’s words, “the conduit between Diageo’s marketing team and Northstar [Research Partners, LLC], the third-party market research company” that conducted focus groups for the selection of the Crème de Lys brand.…
Category Archives Issue 515
A federal multidistrict litigation (MDL) court in Pennsylvania has determined that individual-purchaser plaintiffs and a direct-purchaser class failed to discover evidence that U.S. chocolate companies conspired to increase prices for immediate-consumption products between 2002 and 2007, and, with “nothing more than speculation as to the who, what, when, where, and how of communications that allegedly facilitated the parallel price increases,” the court was compelled to grant the defendants’ motions for summary judgment on the plaintiffs’ Section 1 antitrust claims under the Sherman Act. See In re Chocolate Confectionery Antitrust Litig., MDL No. 1935 (M.D. Pa., decided February 26, 2014). The litigation involves some 91 lawsuits transferred to the MDL court for pre-trial proceedings. Defendants Nestlé U.S.A., Inc., The Hershey Co., and Mars, Inc. and Mars Snackfood U.S. LLC control about 75 percent of the U.S. chocolate-products market, and during the relevant time period, which saw prices for cocoa increase 53…
In response to requests from trade associations representing meat industry interests, California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the comment period on its proposal to list nitrite in combination with amines or amides as known to the state to cause cancer under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). If these substances are added to the Prop. 65 list, companies making products containing them will be required to provide warnings to California consumers. Comments are now requested by May 8, 2014. See OEHHA News Release, February 28, 2014. Meanwhile, OEHHA has also issued the agenda for the March 27, 2014, meeting of the Biomonitoring California Scientific Guidance Panel, which will convene in Oakland; the meeting will be accessible via Webinar. Program and laboratory updates are on the agenda, and the panel will also discuss chromium as a potential designated chemical and…
California Senator Noreen Evans (D-Santa Rosa) has introduced legislation (S.B. 1381) that would require labeling for genetically engineered (GE) foods but also place limits on potential litigation arising from the failure to label such products. Under the California Right to Know Genetically Engineered Food Act, “any raw agricultural commodity or packaged food that is entirely or partially produced with genetic engineering” would need to bear labels stating that the product in question was “Produced with Genetic Engineering” or “Partially Produced with Genetic Engineering.” The bill would allow the state attorney general or an injured resident “to bring an action for injunctive relief against a violation of these provisions, as specified.” Unlike previous efforts, however, the current proposal would “authorize a court to award a prevailing plaintiff reasonable attorneys’ fees and costs, and would prohibit a court from awarding monetary damages in an action brought under the bill’s provisions.” It would…
Following an application to claim that vitamin D is important to normal bone and teeth development in infants and children, the European Food Safety Authority’s (EFSA’s) Panel on Dietetic Products, Nutrition and Allergies has issued an opinion affirming that vitamin D contributes to normal development of bones and teeth. The panel noted previous favorable assessments of vitamin D and the maintenance of normal bones and teeth in the general population, concluding that “the role of vitamin D in bone and tooth mineralisation and homeostasis applies to all ages, including infants and young children (from birth to three years).” Issue 515
The European Food Safety Authority (EFSA) has announced an April 23, 2014, scientific meeting to discuss its draft opinion on the human health risks of bisphenol A (BPA) for consumers. Developed by the EFSA Panel on Food Contact Materials, Enzymes, Flavourings and Processing Aids (CEF), the draft opinion also includes a re-evaluation of the tolerable daily intake for BPA, which the agency temporarily recommended lowering from 50 μg/kg bw/day to 5 μg/kg bw/day over concerns that exposure to the substance is likely to pose health risks. Additional details about EFSA’s draft assessment of consumer exposure to BPA appear in Issue 511 of this Update. The meeting seeks to discuss comments received during the draft opinion’s consultation period, which ends March 13. Before adopting its final opinion the CEF Panel will take into account these comments and meeting discussions, as well as issue a separate report that outlines these proceedings. EFSA…
The World Health Organization’s Regional Office for Europe (WHO/EU) reportedly warned attendees of a February 25-26, 2014, health conference held by the European Commission and the Greek Presidency of the Council of the European Union that “being overweight is so common that it risks becoming a new norm.” According to a February 25, 2014, press release, WHO/ EU reported that 27 percent of 13-year-olds and 33 percent of 11-year-olds are now overweight, while 30 percent of boys and girls ages 15 and older “are not getting enough physical activity” in 23 of the 36 countries profiled by the organization. Although it noted the role of physical inactivity in rising obesity rates, WHO/ EU ultimately urged national governments to consider implementing stricter labeling and food product regulations that would require “the food industry to take responsibility.” “We must not let another generation grow up with obesity as the new norm,” said…
The U.S. Food and Drug Administration (FDA) has issued a final rule denying requests for a stay of the effective date and for a hearing on the final rule concerning the use of irradiation in food production, processing and handling. Originally appearing in the August 22, 2008, Federal Register, the rule amended food additive regulations to permit the use of ionizing radiation to control foodborne pathogens and extend the shelf life of fresh iceberg lettuce and spinach. After reviewing objections to the final rule and requests for a hearing, FDA has concluded that “the objections do not raise issues of material fact that justify a hearing or otherwise provide a basis for revoking or modifying the amendment to the regulation,” and confirmed August 22, 2008, as the effective date for the final rule. Issue 515
The U.S. Food and Drug Administration (FDA) has proposed revisions to the Nutrition Facts label that would emphasize the number of calories and servings per container, among other things. As the agency explained in a February 27, 2014, press release, the new panels would not only display calories per serving in larger, bolder type, but would update serving sizes to reflect “the reality of what people actually eat, according to recent food consumption data.” In addition to breaking out the amount of added sugar as a separate item, the labels would make “the number of servings per package . . . more prominent,” with “amount per serving” tied to the actual serving size, e.g., “Amount per cup.” FDA has also recommended updating the daily values for various nutrients, listing potassium and vitamin D amounts on the label, and removing “calories from fat” completely. “Obesity, heart disease and other chronic diseases…
12
