The food industry groups challenging Vermont’s statute requiring the labeling of food containing genetically modified organisms (GMOs) have filed a notice of appeal one week after a Vermont federal court denied their motion for an injunction to stop the law from taking effect on July 1, 2016. Grocery Mfrs. Ass’n v. Sorrell, No. 14-0117 (D. Vt., notice of appeal filed May 6, 2015). While the motion for a preliminary injunction failed, the court allowed the case to proceed. Additional information about the injunction denial appears in Issue 563 of this Update. Issue 564
Category Archives Issue 564
Consumer Advocacy Group, Inc. has filed a lawsuit against T.J. Maxx, its parent company and its food supplier alleging that they failed to provide a warning of lead content in a raspberry balsamic vinegar product in accordance with the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65), the California law that requires warnings on the labels of products that contain substances known to cause cancer or reproductive harm. Consumer Advocacy Grp. Inc. v. Olivier Napa Valley Inc., No. BC580857 (Cal. Super. Ct., Los Angeles Cty., filed May 4, 2015). The complaint asserts that because all “[v]inegar contains lead,” the defendants should have known that the product was subject to Prop. 65 labeling requirements. Consumer Advocacy Group argues that it investigated the product and gave notice of the alleged violation to each defendant, the state attorney general, county district attorneys and city attorneys but none of the authorities…
A California man has filed purported class actions against Nestlé USA Inc. and General Mills Inc. claiming that both companies use trans fat in their products—specifically, General Mills’ baking mixes and Nestlé’s coffee creamers—despite the availability of acceptable alternative ingredients without trans fat. Backus v. Gen. Mills Inc., No. 15-1964 (N.D. Cal., filed April 30, 2015); Backus v. Nestle USA Inc., No. 15-1963 (N.D. Cal., filed April 30, 2015). Each complaint details the history and structure of partially hydrogenated oil (PHO), the products’ source of artificial trans fat. Plaintiff Troy Backus argues that the scientific consensus on PHO advises that “consumers should keep their consumption of trans fat ‘as low as possible’” because it allegedly causes cardiovascular disease, type 2 diabetes, cancer and other medical conditions. He also cites regulations limiting trans fats in California, New York City, Denmark and other jurisdictions as evidence that the substance is “inherently dangerous.”…
Skinnygirl Cocktails, LLC and a consumer have filed a joint stipulation of dismissal in a lawsuit alleging that the company and its reality-TV star founder, Bethenny Frankel, mislabeled its Margarita cocktail as “natural” despite containing the preservative sodium benzoate. Langendorf v. Skinnygirl Cocktails, LLC, No. 11-7060 (N.D. Ill., joint stipulation of voluntary dismissal with prejudice filed May 5, 2015). The joint stipulation comes after the court refused to certify the class in October 2014, finding that the plaintiff failed to show that the class was ascertainable and that the plaintiff was not a suitable representative for the class due to a personal relationship with her counsel. The stipulation does not indicate whether the parties reached a settlement. Additional information about the denial of class certification appears in Issue 544 of this Update. Issue 564
A New York federal court has reportedly approved an agreement between Red Bull GmbH and a class of consumers, settling allegations that Red Bull falsely advertised its product as providing more benefit than coffee provides. Careathers v. Red Bull N. Am. Inc., No. 13-0369 (S.D.N.Y., order entered May 1, 2015); Wolf v. Red Bull GmbH, No. 13-8008 (S.D.N.Y., order entered May 1, 2015). The agreement allots $13 million to the 2 million claimants, of whom 60 percent will each receive $4.23 and 40 percent will each receive a four-pack of Red Bull energy drinks. The court cut the fees for plaintiffs’ counsel down to about $3.4 million, or about $1.4 million less than they requested; the attorney’s fees and class award were not linked, and the court apparently indicated that it would have preferred to lower the attorney’s fees amount to increase the total consumer amount to accommodate the large…
A Florida federal court has dismissed a lawsuit alleging that Beam Suntory Inc. and Maker’s Mark Distillery falsely label their Maker’s Mark® bourbon as “handmade” because they manufacture the product using a mechanized process. Salters v. Beam Suntory, Inc., No. 14-659 (N.D. Fla., order entered May 1, 2015). The plaintiffs “have been unable to articulate a consistent, plausible explanation of what they understood ‘handmade’ to mean in this context. This is understandable; nobody could believe a bourbon marketed this widely at this volume is made entirely or predominantly by hand,” the court said. The court first found that the process of making Maker’s Mark® bourbon is handmade in the original sense of the word because it is “distinguished from the work of nature,” according to the Oxford English Dictionary definition. “In that sense all bourbon is handmade; bourbon, unlike coffee or orange juice, cannot be grown in the wild.” The court…
The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has asked the Carcinogen Identification Committee (CIC) to further evaluate “nitrite in combination with amines or amides” for possible inclusion on the state’s list of substances known to cause cancer under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). According to OEHHA, “nitrite is a natural constituent of fresh produce, including spinach and celery, and of fresh uncured meats,” while “amines are organic compounds that contain a basic nitrogen atom with a lone electron pair” and “amides are organic compounds that can be formed from amines, and contain a nitrogen atom and an oxygen atom.” After announcing a February 7, 2014, proposal to list the chemical combination under Prop. 65, the agency received comments and scientific evidence supporting the measure but ultimately concluded that regulatory criteria “have not been met for the spectrum of…
The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) is convening a public meeting of the General Conference Committee of the National Poultry Improvement Plan on July 23, 2015, in Salt Lake City, Utah. The group of industry and state agency representatives will reportedly discuss (i) approved tests and (ii) updates regarding avian influenza, Salmonella and Mycoplasma. See Federal Register, May 1, 2015. Issue 564
In a May 5, 2015, Law360 analysis, Shook, Hardy & Bacon Partner Andy Carpenter chronicles a “meta” class action against Riceland Foods, Inc., a party to multidistrict litigation (MDL) stemming from the use of genetically modified organism (GMO) rice, which several thousand rice farmers alleged had tainted the U.S. rice supply. After Riceland obtained a verdict in a cross-claim against Bayer and settled its portion of the MDL, class-action counsel and plaintiffs filed a lawsuit against the company to obtain compensation for their work, from which they argued Riceland benefited when it received a judgment from Bayer. Carpenter details the reasoning of the district court and the later affirmation from the Eighth Circuit, discussing issues of jurisdiction and choice of law. Issue 564
In a May 8, 2015, Law360 article titled “For High Court, 2 Scoops of Raisins In This Case,” Shook, Hardy & Bacon Partner Ann Peper Havelka and Associate Jara Settles provide an overview of the arguments in a U.S. Supreme Court case challenging the U.S. Department of Agriculture’s program requiring raisin farmers to set aside a portion of their yield to give to the federal government to aid in stabilizing the market. They document the questions and responses during oral argument, noting the issues that interested the justices, including Justice Stephen Breyer’s point that compensation for the alleged taking may have been paid in the form of increased raisin prices and Justice Samuel Alito’s concern over whether a similar program could be instituted for other products, such as cell phones or cars. “Despite the government’s defense of a decades-old price stabilization plan, the court’s questioning during oral argument leaned toward…
