Environmental activist Erin Brockovich uses the U.S. Food and Drug Administration’s (FDA’s) recent determination that genetically engineered salmon is safe for human consumption and requires no labeling as such to rally consumers into action against genetically modified organisms (GMOs) in a December 1, 2015, opinion piece in Time. “The biotech industry and the FDA have hijacked not only our basic rights as consumers, but also our fundamental human rights in the face of corporate monopolization of our food supply,” Brockovich said. “They are jeopardizing our health and the environment more than ever before. When will the government agencies put in place to protect us stop servicing the bottom line of corporations?” Brockovich briefly reviews the findings of various agencies and organizations worldwide, ultimately imploring readers to “help spark a larger conversation about the food we are eating in this country” by voicing their GMO-related concerns to federal lawmakers. Issue 586
Category Archives Issue 586
The World Trade Organization’s (WTO’s) Appellate Body has affirmed an April 2015 ruling that U.S. tuna regulations discriminate against Mexico by requiring “dolphin-safe” labels reflecting the methods used to catch the fish that protect against capture of the mammal. In response to the appellate ruling, the United States criticized the decision as focusing on points that Mexico had not challenged and were merely “hypothetical” and an “academic exercise.” “Panels and the Appellate Body should not make their conception of the ‘perfect’ measure the enemy of all the possible good ones,” according to the U.S. statement provided during the meeting of the WTO Dispute Settlement Body on December 3, 2015. “In pursuing legitimate objectives, Members should not be held to the impossible standard of designing and applying a measure that corresponds exactly to the one that a panel or the Appellate Body would have designed to achieve the legitimate objective at…
Pepperidge Farm, maker of Milano® cookies, has filed a trademark infringement lawsuit against Trader Joe’s Co. alleging the retailer’s Crispy Cookies emulate the shape and configuration of Milano® cookies. Pepperidge Farm, Inc. v. Trader Joe’s Co., No. 15-1774 (D. Conn., filed December 2, 2015). In addition to the similarity between the cookie products, Pepperidge Farm alleges that the packaging of Crispy Cookies is similar as well. Although Crispy Cookies packaging depicts the cookies in a fluted paper tray—as Milano® cookies are sold—Trader Joe’s actually packages the cookies in a plastic tray inside the external packaging. Pepperidge Farm cites Google search results for “‘Trader Joe’s,’ ‘cookie’ and ‘Milano’” as evidence that consumers have also noted the similarities between the two products. Pepperidge Farm seeks declarations of infringement, permanent injunctions, damages and attorney’s fees. Issue 586
The National Restaurant Association (NRA) has petitioned a New York state court for a declaratory judgment stating that a New York City regulation requiring restaurants to post warnings on menu items high in sodium is arbitrary and capricious as applied. Nat’l Restaurant Assoc. v. New York City Dep’t of Health & Mental Hygiene, No. 654024/2015 (N.Y. Sup. Ct., filed December 3, 2015). The complaint compares the regulation to the city’s 2012 attempt to prohibit sales of soft drinks in cups larger than 16 ounces, alleging that the New York City Board of Health is merely “looking to grab headlines as the purveyor of ‘first in the nation’ health initiatives, notwithstanding that, in truth, its sodium regulation is illogical, unlawful, and more likely to mislead consumers about sodium health than help them.” NRA argues that the regulation, which took effect December 1, 2015, is “riddled with arbitrary exclusions and exemptions that…
The California Supreme Court has held that a consumer may sue Herb Thyme Farms, Inc. alleging its herbs are improperly labeled as “organic,” dismissing the farm’s contention that the Organic Foods Production Act of 1990 blocks such claims. Quesada v. Herb Thyme Farms, Inc., No. S216305 (Cal., order entered December 3, 2015). Details about previous court rulings concluding that the federal law preempted the action appear in Issues 347 and 509 of this Update. The court found that, contrary to the farm’s arguments, the federal statute does not prohibit consumers from seeking redress. “[T]he complaint here alleges Herb Thyme has engaged in fraud by intentionally labeling conventionally grown herbs as organic, thereby pocketing the additional premiums organic produce commands. The purposes and objectives underlying the Organic Foods Act do not suggest such suits are an obstacle; to the contrary, a core reason for the act was to create a clear…
The San Francisco Board of Supervisors has reportedly voted to repeal an ordinance prohibiting advertisements for sugar-sweetened beverages (SSBs) on city property in light of the U.S. Supreme Court ruling in Reed v. Town of Gilbert, Ariz., that struck down a comparable initiative restricting advertising on public property. The ordinance was one of three passed by the municipal lawmakers in June 2015. The others (i) mandate health warnings on most billboards and ads for SSBs with 25 or more calories and (ii) prevent city departments and contractors from using city funds to purchase SSBs. “We may have lost this particular battle, but the war rages on,” Supervisor Malia Cohen was quoted as saying. “We didn’t take down Big Tobacco overnight—we’re not going to take down Big Soda overnight either.” The American Beverage Association filed suit against both advertising ordinances on First Amendment grounds, and its challenge of the mandated health…
The National Institute for Occupational Safety and Health (NIOSH) has launched a Center for Maritime Safety and Health Studies. The new program will reportedly coordinate research and intervention studies across the agency for this “high-risk worker population.” See NIOSH eNews, December 2015. Issue 586
Kind LLC has filed a citizen petition to the U.S. Food and Drug Administration (FDA) challenging regulations governing the use of “healthy” on food labeling, arguing that specific nutrient levels in a product do not dictate whether it is “healthy.” The petition asks FDA to reevaluate its nutrient content claim regulations for consistency with current federal dietary recommendations and issue rules accordingly. Kind filed the petition months after FDA issued the company a warning letter—and the company was targeted by a consumer class action on the same subject—about the use of “healthy” on Kind snack bars, which contain more than 1 gram of saturated fat due to their nut content. Additional details about the letter and subsequent lawsuits appear in Issues 562 and 575 of this Update. Issue 586
Shook, Hardy & Bacon Data and Discovery Strategies attorneys Jesse Weisshaar and Mark Cowing analyze changes to the Federal Rules of Civil Procedure in a newly published Bloomberg BNA: Digital Discovery & e-Evidence® special report titled “Amendments to Discovery Rules: How Will You Be Affected?” Providing a detailed overview of the amendments that took effect December 1, 2015, the report addresses rules pertaining to discovery in general as well as the discovery of electronically stored information. The authors explore the practical implications of increased court involvement in the discovery process, discussing new provisions that emphasize proportionality and seek to facilitate “early, frequent and informed” cooperation between parties. They recommend that parties be prepared to “act sooner,” “be specific” and “reassess preservation practices.” As the report concludes, “[A]ll involved should be prepared to adjust their existing approaches to discovery to comply with the compulsory aspects of the Rules’ amendments: (a) the…
