A recent perspective article in the New England Journal of Medicine (NEJM) has questioned whether nutrient-content claims—such as “sugar-free,” “high in oat bran,” or “contains 100 calories”—are confusing to consumers. Authored by Allison Sylvetsky and William Dietz, the article claims that sugar- and calorie-related claims “may lead parents to underestimate the products’ energy content and allow their children to consume more than they otherwise would.” According to the authors, the use of nonnutritive sweeteners in sugar- and calorie-modified products “may still foster the development of a ‘sweet tooth’ because nonnutritive sweeteners are a hundred times sweeter than table sugar by weight.” In addition, U.S. consumers have no way to gauge whether their children have exceeded the acceptable daily intake for a particular nonnutritive sweetener because the amount added to any given product is considered proprietary information. “We believe that adopting a more straightforward and easily understandable ingredient-labeling system in the…
Category Archives Issue 532
Directed by Congress to conduct an independent review of the styrene assessment in the National Toxicology Program’s (NTP’s) 12th Report on Carcinogens (12th RoC), the National Academies National Research Council (NRC) recently issued a report concurring that there is “compelling evidence… to support a listing of styrene as, at a minimum, reasonably anticipated to be a human carcinogen.” Deemed “a substance of interest” because many people are exposed to it through environmental sources, styrene is used in food packaging and “a broad spectrum of products, including latex paints and coatings; synthetic rubbers; construction materials, such as pipes, fittings, and lighting fixtures; packaging; household goods, such as synthetic marble, flooring, and molded furnishings; and automotive parts.” According to NRC, which reviewed the primary literature cited in the 12th RoC, NTP “adequately documented that exposure to styrene occurs in occupational settings and in the general public regardless of smoking status.” Concluding there…
A recent Nature editorial warns that the U.S. Food and Drug Administration’s (FDA’s) reluctance to approve genetically-modified (GM) salmon for market could hinder future research into new gene-editing techniques. Titled “Fishy Business,” the article claims that even though a draft assessment found AquaBounty Technologies’ GM salmon “environmentally benign,” FDA conducted many of its deliberations “behind closed doors, fuelling confusion as to the cause of the setbacks, and rumors of political interference.” “As the delays have dragged on, the technology used to make AquaBounty’s salmon has become outdated,” explains the editorial. “In the current excitement over targeted gene editing that allows researchers to modify individual genes without leaving traces of foreign DNA, AquaBounty’s salmon—which contain a gene from another species—seem like a relic.” Meanwhile, FDA has yet to decide “how it will evaluate animals engineered with gene-editing techniques.” Raising questions about how these new products will fare under FDA’s oversight, the…
The U.K. Supreme Court has reportedly refused to consider the appeal filed by Chobani Inc. from an appeals court order dismissing its appeal of a permanent injunction prohibiting the company from designating its U.S.-made yogurt as “Greek” yogurt. Additional details about the January 2014 appeals court ruling appear in Issue 511 of this Update. According to a court spokesperson, three justices dismissed the application for permission to appeal “because the application [did] not raise a point of law of general public importance.” Fage U.K., Ltd., which instituted the litigation, said of the ruling, “The High Court has ended the ‘Greek yogurt’ case, its decision is final. Chobani is forbidden from selling US-made strained yogurt as ‘Greek’ in the United Kingdom.” Fage also reportedly said that Chobani must pay its legal fees. Meanwhile, expressing disappointment in the outcome, Chobani has apparently indicated that it no longer sells its yogurt in Britain,…
While a number of jurors were dismissed because a two-month trial would create hardships for them, a 12-member jury and six alternates were selected on July 31, 2014, and opening statements began the next day in the criminal prosecution of former Peanut Corp. of America (PCA) owner Stewart Parnell, his brother Michael Parnell and the company’s quality control manager Mary Wilkerson. United States v. Parnell, 13-cr-12 (M.D. Ga.). Earlier in the week, the court denied Wilkerson’s motion to dismiss or alternatively for a continuance and severance and to compel meaningful discovery. She claimed that the government’s discovery disclosures “were not accompanied by easily searchable databases” and that she was not timely provided a password to access one of two discovery disclosures. The court had apparently considered some of these issues previously and found that “Wilkerson has not demonstrated any changed circumstances that would require the Court to reconsider its referenced…
In a petition for a writ of certiorari, plaintiffs alleging harm by exposure to the flavoring agent diacetyl have argued that the Third Circuit erred in ruling that Aaroma Holdings cannot be held liable for the actions of diacetyl producer Emoral Inc., which Aaroma purchased following the alleged exposures. Diacetyl Plaintiffs v. Aaroma Holdings, No. 14-71 (U.S., petition for writ of certiorari filed July 18, 2014). The terms of the 2010 purchase agreement confirming Aaroma’s acquisition of Emoral apparently noted that Emoral may be subject to diacetyl litigation and stated that Aaroma did not assume liability for any future claims. Emoral filed for bankruptcy protection in 2011, and the bankruptcy trustee reportedly released Aaroma from future diacetyl causes of action against Emoral in exchange for $500,000. In addition to accusing the Third Circuit of diverging from binding precedent on injured creditors’ claims, the plaintiffs’ petition argues that the decision is contrary…
A California federal court has granted the plaintiffs’ request to dismiss their entire action with prejudice in a case accusing Gruma Corp. of labeling its Mission Restaurant Style tortilla chips as “all natural” despite containing genetically modified corn. Cox v. Gruma Corp., No. 12-6502 (N.D. Cal., order entered July 25, 2014). The plaintiffs’ stipulation to dismiss did not indicate whether the parties reached a settlement agreement. In the 2012 complaint, the plaintiffs alleged that Gruma violated state consumer protection laws like the Consumer Legal Remedies Act due to its alleged mislabeling; in July 2014, they debated Gruma’s motion to dismiss, in which the corporation argued that a reasonable customer would not have been misled by their labels, the complaint’s claims infringed the First Amendment, the plaintiffs failed to plead their fraud claims with the particularity required, and the court lacked jurisdiction to issue an injunction. Additional information on the case appears…
A federal court in California has dismissed for lack of standing a putative class action alleging that Pacific Foods of Oregon, Inc. misleads consumers by using the term “evaporated cane juice” (ECJ) on its food labels instead of sugar. Swearingen v. Pac. Foods of Ore., Inc., No. 13-4157 (N.D. Cal., order entered July 30, 2014). Plaintiffs Mary Swearingen and Robert Figy are named plaintiffs in a number of ECJ-related cases that have recently been stayed under the primary jurisdiction doctrine as the U.S. Food and Drug Administration considers its position on use of the term by food makers. Two such cases are summarized in Issue 529 of this Update. The court did not address this issue here, because it dismissed the case on pleading grounds. According to the court, the plaintiffs did not allege that they purchased the company’s products “in reliance on any alleged misrepresentations that evaporated cane juice is…
In consolidated actions pending since 2010, a federal court in California has entered a final order approving a class-action settlement that will require Quaker Oats Co. to remove partially hydrogenated oils (PHOs) from some of its oatmeal products and cease making the statement “contains a dietarily insignificant amount of trans fat” on any product label where the product still contains more than 0.2 grams of artificial trans fat per serving. In re Quaker Oats Labeling Litig., No. 10-0502 (U.S. Dist. Ct., N.D. Cal., San Jose Div., order entered July 29, 2014). Details about a court ruling trimming the plaintiffs’ claims that the company falsely advertised products with PHOs as healthy appear in Issue 433 of this Update. According to the court’s order awarding $760,000 to class counsel in attorney’s fees and costs, the suit and settlement conferred “a significant benefit . . . on the general public” given the product…
In a 9-2 en banc decision, the District of Columbia Circuit has affirmed an earlier panel decision that the U.S. Department of Agriculture (USDA) can require meat producers to include country-of-origin labeling (COOL) on their packaging. Am. Meat. Inst. v. USDA, No. 13-5281 (D.C. Cir., order entered July 29, 2014). The First Amendment allows for such required disclosures because the government’s interest is sufficient, the court found. Additional information on the American Meat Institute’s constitutional challenge and the D.C. panel’s decision appears in Issues 518 and 520 of this Update. In its discussion, the court interpreted the U.S. Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) to reach beyond mandated commercial labeling necessary to correct deception to include the “factual and uncontroversial disclosures required to serve other government interests” at issue in the COOL context. The language in Zauderer “sweeps far more broadly than…
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