A new study has allegedly linked a high dietary glycemic index (GI) and glycemic load—“markers of carbohydrate intake”—to an increased risk of lung cancer in non-smokers. Stephanie C. Melkonian, et al., “Glycemic Index, Glycemic Load, and Lung Cancer Risk in Non-Hispanic Whites,” Cancer Epidemiology, Biomarkers & Prevention, March 2016. Comparing data from newly diagnosed lung cancer cases to a group of healthy controls, the study authors reportedly found an increased risk for lung cancer among participants with dietary GI in the highest quintile, compared to those in the lowest quintile. In particular, their stratified analyses purportedly noted “a more profound, independent association between dietary GI and lung cancer risk in individuals without traditional lung cancer risk factors.” “Diets high in GI result in higher levels of blood glucose and insulin, which promote glucose intolerance, insulin resistance, and hyperinsulinemia,” explain the researchers. “This is only the second study to suggest an independent…
Category Archives Issue 597
A New York state appellate court has affirmed a lower court’s ruling dismissing a lawsuit against a local Fox TV station that investigated and reported on the allegedly false health claims of D’Lites ice cream in two stores. Prince v. Fox Television Stations Inc., No. 107129/2011 (N.Y. App. Div., 1st Dept., order entered March 8, 2016). The eight-minute “Shame Shame Shame” report informed viewers that the nutritional information advertised for a small serving did not correlate to the nutritional information of the ice cream served by two New Jersey stores; the owner of a D’Lites store—not one involved in the report—sued the station for libel. A lower court then dismissed the lawsuit; details appear in Issue 524 of this Update. “To the extent that there were purported discrepancies in the measurements of sugar and carbohydrates in the test results of the samples sold in stores, plaintiff does not dispute that…
A woman has filed a lawsuit alleging Dole Fresh Vegetables, Inc. sold salad mixes contaminated with Listeria. Georgostathis v. Dole Fresh Vegetables, Inc., No. 16-0360 (S.D. Ohio, filed March 7, 2016). The woman asserts that after her mother ate the salad mix, she became infected with Listeria and felt extreme head and neck pain that ultimately caused her to become comatose. The complaint argues that the strain of Listeria in the plaintiff’s salad mix is “indistinguishable from the strain involved in the recent Listeria outbreak linked to Dole salad products produced at the Springfield, Ohio processing facility.” The outbreak has reportedly sickened nearly 30 people in the United States and Canada who were all hospitalized as a result of contracting Listeria. The plaintiff, who is represented by foodborne-illness attorney Bill Marler, seeks damages and attorney’s fees for allegations of negligence, product liability and violations of Ohio consumer-protection law and the…
Great Harvest Franchising, Inc. and two franchisees of Great Harvest Bread Co. have filed a lawsuit against Panera Bread Co., alleging the company has been using a tagline—“Food as it should be”—that infringes on Great Harvest’s trademarked slogan, “Bread. The way it ought to be.” Great Harvest Franchising, Inc. v. Panera Bread Co., No. 16-0121 (W.D.N.C., Charlotte Div., filed March 10, 2016). Great Harvest established its tagline in October 2014 and registered the mark in December 2015, and it alleges that Panera began using its similar slogan in July 2015. The plaintiffs seek an injunction, destruction of infringing materials and damages for allegations of unfair competition, trademark infringement and false designation of origin. Issue 597
A California federal court has dismissed a proposed class action against Nestlé USA, Inc. alleging that its Coffee-Mate creamer products are mislabeled because they include partially hydrogenated oil (PHO), which contains trans fat, despite listing “0g Trans Fat” on its labels. Backus v. Nestlé USA, Inc., No. 15-1963 (N.D. Cal., order entered March 8, 2016). The court first agreed with Nestlé’s argument that the plaintiff’s three use claims—those arguing that the company’s use of PHO makes it liable for damages to consumers—were preempted by the federal Food, Drug, and Cosmetic Act (FDCA) and the U.S. Food and Drug Administration’s (FDA’s) compliance schedule for removing trans fat from food by June 18, 2018. The court then turned to the labeling claims, which Nestlé also argued were preempted by the FDCA, as amended by the Nutrition Labeling and Education Act, which established that a company must list the trans fat content of…
A California federal court has again denied certification in a putative consumer class action challenging Yakult USA’s probiotic yogurt product for allegedly false digestive-health claims. Torrent v. Yakult USA, Inc., No. 15-0124 (C.D. Cal., S. Div., order entered March 7, 2016). Additional information about the previous denial of certification appears in Issue 589 of this Update. In its prior denial, the court found the plaintiff was unlikely to purchase the product again, thus he lacked standing to pursue an injunction. Following this ruling, the plaintiff purchased Yakult at a store, then refiled his motion for class certification along with a sworn declaration that “I intend to buy Yakult in California in the future.” The court found the refiled motion to be “an effort to manufacture standing in direct response to this Court’s prior ruling.” Allowing the plaintiff “to seek injunctive relief based on his recently-expressed intention to purchase Yakult in the…
The Supreme Court of Spain has reportedly dismissed a challenge brought by the Comité Interprofessionel Du Vin de Champagne alleging that Champín, a Spanish fruit-flavored soft drink, infringes the organization’s protected-designation-of-origin rights. The organization asserted that Champín could be confused with Champagne, which may only describe sparkling wines made in that region. The court disagreed, finding that “Champín differs enough with respect to those products protected by the Champagne appellation that the phonetic similarity does not evoke the product.” See The Local, March 10, 2016. Issue 597
The U.S. Food and Drug Administration (FDA) has announced that two rules requiring calorie information to be listed on menus and menu boards in chain restaurants will not be enforced December 1, 2016, as initially planned, but will instead be delayed until one year after final guidance is issued. The announcement credits the omnibus appropriations bill enacted December 18, 2015, as cause for the delay. The agency is currently reviewing comments about related draft guidance issued in September 2015. See FDA Statement, March 9, 2016. Issue 597
The U.S. Food and Drug Administration has issued guidance titled “Acrylamide in Foods” that finalizes a November 2013 draft on the topic. The document provides information about reducing acrylamide in potato-based, cereal-based and other foods as well as information to provide consumers on cooking packaged frozen french fries. See Federal Register, March 11, 2016. Issue 597
In an article for the Washington Legal Foundation’s Legal Pulse, Shook Partner Frank Cruz-Alvarez and Associate Rachel Canfield discuss the future of class actions in light of the passing of U.S. Supreme Court Justice Antonin Scalia. “In the specific area of class-action litigation, Justice Scalia repeatedly thwarted the plaintiffs’ bar’s efforts to encourage liberal interpretation of Rule of Civil Procedure 23 and broadly applied the preemptive effect of the Federal Arbitration Act (FAA),” they write. “His death and vacancy have generated much speculation about how the post-Scalia high court will address class actions and other related cases in the terms ahead. Cruz-Alvarez and Canfield provide an overview of Scalia-authored opinions in class action appeals and discuss immediate effects of his death on the litigation environment, noting that one company candidly announced it would not seek certiorari in an antitrust class action because of Scalia’s absence from the bench. Further, they…
