“If any one name evokes unfettered truths about the sociopolitical machinations of ‘Big Food,’ it is that of Marion Nestle, professor of nutrition, food studies and public health at New York University,” proclaims physician David Katz in a review of Nestle’s new book, Soda Politics: Taking on Big Soda (and Winning). “Dominions of fizz,” Nature, October 1, 2015. Nestle describes, according to Katz, “softball” strategies employed by industry—“… scientific evidence on health effects, the industry’s impact on the environment and the preferential marketing of soft drinks to children, specific ethnic groups and poor people …”—as well as “the correspondence between the tactics of the soft-drinks and tobacco industries.” Those alleged tactics, Nestle asserts, include “’hardball’ strategies such as litigation, lobbying of Congress, and front groups such as New Yorkers Against Unfair Taxes, established by the beverage industry to oppose a soft-drinks levy.” Issue 580
Category Archives Issue 580
California Attorney General Kamala Harris has proposed amendments to the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) that would require increased transparency and accountability in how the penalties paid by companies are spent by consumer groups, environmental organizations and other private enforcers of the law. In 2014, Prop. 65 actions reportedly resulted in payments of $29 million, of which $21 million was spent on attorney’s fees and costs. The proposed changes would require “clearly defined” purposes relevant to the violations that prompted the settlement. The proposal would also cap “in lieu of penalties” payments to ensure the Office of Environmental Health Hazard Assessment receives sufficient funding and raise the bar for demonstrating that settlements requiring reformulation confer a significant public benefit. Public comments about the proposed revisions will be accepted until November 9, 2015. “California has led the nation for decades in protecting our residents…
Two consumers have reportedly filed a putative class action against Welch Foods, Inc. and Promotion in Motion Cos. alleging their Welch’s fruit snacks products are deceptively advertised as providing vitamins and nutrients despite being “no more healthful than candy.” Atik v. Welch Foods, Inc., No. 15-5405 (E.D.N.Y., filed September 18, 2015). Welch’s packaging advertises its products as produced from “real fruit” despite using only fruit concentrate, the complaint reportedly alleges, and the packaging implies the vitamins in the fruit snacks are derived from the fruit rather than introduced during the production process. This infusion allegedly runs afoul of the U.S. Food and Drug Administration’s “jelly bean rule,” which targets products that would not otherwise meet the agency’s standards for healthful foods without the addition of vitamins during the production process. See FoodNavigator-USA, September 23, 2015. Issue 580
Proximo Spirits, Inc. has settled a class action alleging it deceptively marketed Tincup Whiskey® as manufactured entirely in Colorado despite part of its production occurring in Indiana. Aliano v. Proximo Spirits, Inc., No. 14-17429 (Ill. Cir. Ct., Cook Cty., preliminary approval entered September 16, 2015). Proximo has agreed to establish a $425,000 settlement fund to pay class members with proofs of purchase $4.50 and $2.25 to those without, per bottle purchased. In addition, class members who purchased Tincup for on-premises consumption can receive $0.75 up to a maximum of five drinks. Future Tincup labels will no longer feature claims that the product was manufactured entirely in Colorado and instead must identify the state or states where Proximo manufactured the product. Issue 580
Sazerac Co., maker of Fireball Cinnamon Whisky®, and Stout Brewing Co. have filed a joint stipulation of dismissal with prejudice in a lawsuit alleging that Stout infringed Sazerac’s trademark by selling a malt specialty beer called “Fire Flask.” Sazerac Co. Inc. v. Stout Brewing Co. LLC, No. 15-0107 (W.D. Ky., stipulation filed September 24, 2015). Stout has reportedly agreed to stop selling its existing Fire Flask products and will redesign the label for future production. Each party will pay its own attorney’s fees and costs. Additional details on the August 2015 complaint appear in Issue 576 of this Update. See Law360, September 24, 2015. Issue 580
A Florida federal court has dismissed five putative class action claims, allowing one to continue, against Fifth Generation Inc. in a lawsuit alleging Tito’s® Handmade Vodka is not actually made by hand in “an old fashioned pot still” and thus is deceptively marketed. Pye v. Fifth Generation Inc., No. 14-0493 (N.D. Fla., order entered September 23, 2015). The court cited its May 2015 decision in Salters v. Beam addressing similar claims against Maker’s Mark®, finding that “[m]uch of the analysis here repeats what was said there.” Details about that decision appear in Issue 564 of this Update. The plaintiffs alleged that “handmade” means “made from scratch” or “in small units,” with human involvement in the process. The court disagreed, finding, “No reasonable person would understand ‘handmade’ in this context to mean literally made by hand. No reasonable person would understand ‘handmade’ in this context to mean substantial equipment was not…
A California federal court has denied class certification in a lawsuit consolidated from four separate actions alleging that Hain Celestial Seasonings Teas were produced from ingredients sprayed with pesticides and contained pesticide residue, thus allegedly precluding Hain from labeling its teas as “natural.” In re Hain Celestial Seasonings Prods. Consumer Litig., No. 13-1757 (C.D. Cal., order entered September 23, 2015). In its answer to the complaint, Hain argued the plaintiffs conflated the definitions of “natural” and “organic” in their arguments, noting that under the plaintiffs’ standards, even an apple picked directly from a tree would not be “natural” had pesticides been applied during its growth. The court first chastised the plaintiffs for erroneous references and poorly timed supplemental filings. “Despite 18 months passing between the filing of this lawsuit and the filing of the Certification Motion, Plaintiffs effectively left the Court to drink from a fire hose, perhaps filled with…
A California federal court has denied the U.S. Department of Agriculture’s (USDA’s) motion to dismiss a lawsuit brought by environmental organizations challenging USDA’s issuance of a guidance document about the use of pesticides in compost without first having solicited public comment. Ctr. for Envt’l Health v. Vilsack, No. 15-1690 (N.D. Cal., order entered September 29). The Center for Food Safety (CFS), Center for Environmental Health and Beyond Pesticides challenged USDA’s actions on Administrative Procedures Act (APA) grounds, arguing the agency violated federal procedures by not allowing a formal rulemaking and public comment period about a guidance document permitting the use of compost with pesticides in the production of organic food. The court found that the organizations had sufficiently stated their claim under the APA and had standing to sue. “The agency’s unilateral action to allow compost contaminated with pesticides in organic production was contrary to federal rulemaking requirements as well…
One week after the sentencing of three Peanut Corp. of America (PCA) executives, two managers have been sentenced to prison for their roles in a Salmonella outbreak linked to nine deaths and hundreds of illnesses. Samuel Lightsey and Daniel Kilgore, former operations managers at PCA’s Blakely, Georgia, plant, were sentenced to three years and six years respectively. “By making sure that the individuals involved in the corporate fraud at PCA were held accountable, I am confident that the message to other executives is clear,” said U.S. Attorney Michael Moore. “Because we all know that it is people who make decisions about what goes on behind the corporate curtain, we’ll be looking to hold those individuals personally accountable when they steer their businesses down the path of fraud. Mr. Kilgore and Mr. Lightsey acknowledged their wrongdoing, and today their sentences reflect not only their acceptance of that responsibility, but also the…
Russia has imposed a moratorium on the use of genetically modified organisms in domestic food production. Deputy Prime Minister Arkady Dvorkovich reportedly made the announcement during a biotechnology conference in Kirov on September 18, 2015. Russia’s action follows similar moves by France, Germany and Scotland. See Reuters, September 18, 2015. Issue 580
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