The D.C. Circuit Court of Appeals has vacated a panel’s March 28, 2014, denial of the motion for preliminary judgment filed by meat producer interests in litigation challenging U.S. Department of Agriculture (USDA) regulations requiring retailers of “muscle cuts” of meat to list the countries of origin and production (country-of-origin labeling, or COOL) as to each step of production—born, raised or slaughtered. Am. Meat Inst. v. USDA, No. 13-5281 (D.C. Cir., order entered April 4, 2014). Additional information about the March 28 decision appears in Issue 518 of this Update. A court majority voted to rehear the case before the full court on May 19 and ordered the parties to brief a supplemental issue: “Whether, under the First Amendment, judicial review of mandatory disclosure of ‘purely factual and uncontroversial’ commercial information, compelled for reasons other than preventing deception, can properly proceed under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651…
Category Archives Issue 533
The U.S. Department of Agriculture’s (USDA’s) Agricultural Marketing Service (AMS) has proposed revisions to the U.S. Standards for Grades of Maple Sirup in response to a 2011 petition submitted by the International Maple Syrup Institute (IMSI). Arguing that “consumers currently face a patchwork of grading systems in the United States that are confusing,” IMSI has reportedly asked AMS to implement new standards under which “the grade of a sample unit of maple syrup would be determined using the factors of color, flavor, odor, damage, and turbidity (cloudiness).” In addition to changing the spelling of “sirup” to the more common “syrup,” the agency would recategorize Grade B syrup “containing no damage or off-flavors” as Grade A “to allow the darker syrup to be sold at the retail level.” The revised standards would further divide Grade A into the following flavor and color classes: (i) U.S. Grade A Golden (delicate taste, ≥75.0…
An animal study presented at the Annual Meeting of the Society for the Study of Ingestive Behavior (SSIB) held July 29-August 1, 2014, in Seattle, Washington, has reportedly claimed that “daily consumption of beverages sweetened with high-fructose corn syrup or sucrose can impair the ability to learn and remember information, particularly when consumption occurs during adolescence.” According to a July 29, 2014, SSIB press release, University of Southern California researchers reported that, unlike adult rats given daily access to sugar-sweetened beverages (SSBs), rats that consumed SSBs during adolescence “were impaired in tests of learning and memory capability.” “[O]ur findings reveal that consuming sugar-sweetened drinks is also interfering with our brain’s ability to function normally and remember critical information about our environment, at least when consumed in excess before adulthood,” the lead researcher was quoted as saying. “In addition to causing memory impairment, adolescent sugar-sweetened beverage consumption also produced inflammation in the…
Crickets and other edible insects may be poised for widespread popularity, according to recent New York Times and NPR stories. Cricket flour—pulverized crickets in powder form—offers several nutritional benefits to consumers, including high levels of protein. The flour is gluten-free and compatible with the Paleo Diet, which eschews carbohydrates in favor of meat and vegetables, and cricket flour production is more environmentally friendly and sustainable than other forms of protein production, proponents say. The problem, edible insect-based food producers say, is the “ick factor,” the psychological aversion to eating bugs that many Americans have. According to NPR, marketers have pursued “intelligent cutesiness” to overcome that burden and convince new customers to try insect-based foods, including attempts to rebrand locusts as “sky prawns” to assuage consumer fears. “It tastes like dark toast,” as one investor described cricket flour to The New York Times. Another first-time customer praised her bite of a…
Shook, Hardy & Bacon Partner Marc Shelley and Associate Emily Fedeles recently spoke with Food Navigator about a proposal contained in French Minister of Health Marisol Touraine’s National Health Bill that would extend class actions to claims involving injuries to health. According to the August 7, 2014, article, the bill seeks to expand a new consumer law that established class action procedures for consumer-protection and antitrust claims but stopped short of including personal-injury claims. Noting that the current proposal targets food and beverage manufacturers making product-health claims, Shelley and Fedeles warn that these changes are only the latest in a “troubling” trend that could affect the entire industry as more member states move to expand the scope of their class-action laws. With companies granted only one opportunity to defend against collective claims, Fedeles adds, “[y]ou only get one bite at the apple and of course there’s a difference between paying…
In response to recent sanctions related to the conflict in Ukraine, Russia has prohibited food imports from the United States, European Union, Australia, Norway, and Canada. The ban extends to meat, fish, produce, and milk products and will remain in place for one year. Although alcohol was not included in the announced food import bans, the Russian consumer protection agency, Rospotrebnadzor, has reportedly threatened to prohibit the import of Kentucky Gentleman bourbon, citing potential carcinogens. In July 2014, Russia banned the import of soy products, cornmeal, dairy products, and canned foods from Ukraine and most fruit and vegetables from Poland. Some Russians have been critical of the ban and its projected effects on the Russian food supply. “[L]iterally every [Russian] family will be affected,” Yevsey Gurvich, head of Russian company Economic Expert Group, told The Washington Post. Russian bans of food imports have frequently coincided with their political tensions. Information…
Chipotle Mexican Grill investors have filed a motion for final approval of a derivative-action settlement in a lawsuit accusing the restaurant chain’s executives of breaching fiduciary duties by failing to comply with employee work authorization requirements. Mohammed v. Ells, No. 12-1831 (D. Colo., motion filed July 31, 2014). The case stems from a U.S. Immigration and Customs Enforcement (ICE) investigation of the company that led to the firing of 450 Minnesota employees and 50 Washington, D.C., workers for lack of U.S. work authorization. In July 2012, Chipotle investors accused the company’s executives of breaching their fiduciary duties in several lawsuits that were later merged. After “intense, arm’s-length negotiations by experienced counsel,” the parties reached a settlement that earned preliminary court approval in April 2014. Under the settlement’s terms, Chipotle will provide twice-yearly reports to its audit committee, which oversees the company’s hiring requirement compliance. In arguing for settlement approval, the…
A plaintiff has alleged in Massachusetts federal court that Whole Foods Market mislabels its 365 Everyday Value Plain Greek Yogurt as containing 2 grams of sugar per serving despite Consumer Reports tests showing that a serving of the product contains an average of more than 11 grams of sugar. Knox v. Whole Foods Market, No. 14-13185 (U.S. Dist. Ct., D. Mass., filed Aug. 1, 2014). According to the complaint, the plaintiff learned about the alleged labeling discrepancy from Consumer Reports magazine, which tested six samples of 365 Everyday Value Plain Greek Yogurt and apparently found the average sugar content to be nearly six times the amount listed on the label. Whole Foods reportedly responded to the magazine’s findings by asserting that it relied on testing results from reputable third-party labs. The plaintiff alleges breach of warranty, unjust enrichment and negligence, and he seeks class certification, compensatory and punitive damages, attorney’s…
A plaintiff has accused cereal company Organic Milling of mislabeling its Nutritious Living Hi-Lo brand cereals as “100% natural” despite allegedly containing synthetic and heavily processed ingredients and being produced with genetically modified (GM) crops. Mirto v. Organic Milling, No. BC553780 (Super. Ct. Cal., Los Angeles Cty., filed Aug. 5, 2014). The complaint alleges first that the use of GM crops in the cereal’s production precludes the company from using the phrase “100% natural” on its marketing materials, citing definitions from the World Health Organization and Environmental Protection Agency to argue that “GM crops are not ‘natural,’ and products made from these crops, including [Organic Milling’s products], are not ‘100% natural.’” The complaint further argues that Organic Milling’s use of canola oil in Hi-Lo cereal is not “100% natural” either because of the heavy processing required to produce the oil. The plaintiff also objects to the use of emulsifier soy…
According to New York Southern District U.S. Attorney Preet Bharara, a man who allegedly operated a wine counterfeiting laboratory from his California residence between 2004 and 2012 has been sentenced to 10 years in prison. Rudy Kurniawan apparently became a prominent and prolific U.S. dealer of rare and expensive wine that was actually lower-priced wine blended to mimic the taste and character of far better wines. He allegedly purchased empty bottles of rare and expensive wines—some of them from New York City restaurants—poured his mixtures into them, sealed the bottles, and then attached counterfeit labels that he created. The fakes were then sold to wealthy wine collectors through auctions and by direct sales. According to a news source, Kurniawan was eventually caught through misspellings and other packaging errors, including early 20th century dates on some bottles that pre-dated their actual production. Kurniawan also allegedly fraudulently obtained a $3-million loan from a…
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