The Ninth Circuit has upheld California’s ban on force-feeding ducks and geese to produce foie gras, finding the state’s law is not preempted by the Poultry Products Inspection Act (PPIA). Assoc. des Éleveurs de Canards et d’Oies du Québec v. Becerra, No. 15- 55192 (9th Cir., opinion filed September 15, 2017). In 2013, the Ninth Circuit rejected a constitutional challenge to the ban filed by the same plaintiffs. The court reversed a grant of summary judgment in favor of the plaintiffs, who challenged the state’s ban on sales or production of foie gras made from force-fed birds. First, the court held the ban is not expressly preempted by the PPIA because the federal statute’s “ingredient” requirement addresses the components of poultry products, not husbandry or feeding practices, and California’s law does not ban all foie gras—only that made from force-fed birds. “Nothing in the federal law … limits a state’s…
Category Archives Issue 648
A plaintiff has filed a proposed class action alleging ACH Food Companies sells its Fleischmann’s® Simply Homemade Baking Mix products in opaque boxes that contain approximately 50 percent slack fill. Buso v. ACH Food Cos., No. 17-1872 (S.D. Cal., filed September 14, 2017). The complaint asserts that the plaintiff would not have purchased the products had he known the container was substantially empty. Alleging violations of California consumer-protection laws, the plaintiff seeks class certification, injunctive relief, exemplary, compensatory and punitive damages, restitution and attorney’s fees.
After a jury unanimously found in May 2017 that two former University of California, Davis professors willfully infringed the university’s patents on a strawberry breed they developed in the school’s program, both sides have agreed on a settlement that will dispose of all other claims against each other. Regents of Univ. of Cal. v. Cal. Berry Cultivars, No. 16-2477 (N.D. Cal., filed September 18, 2017). The professors, who left the university to form a private strawberry-breeding company, have agreed to return breeding materials to the school and relinquish $2.5 million in future royalties related to pre-existing patent-share agreements but will retain interests in some of the varietals they bred. Additional details appear in Issues 604, 633 and 636 of this Update.
A former employee of Shake Shack Inc. has alleged he was fired after complaining about health and safety violations at one of the company’s New York City locations. Via v. Shake Shack Inc., No. 17-7049 (S.D.N.Y., filed September 14, 2017). The plaintiff alleges that managers of one location fired him after he complained that, among other allegations, they (i) failed to train employees about food allergies; (ii) allowed visibly sick workers to prepare food; and (iii) failed to properly clean the kitchen and equipment. Recent New York City health inspections cited the location for the presence of food/refuse/sewage-associated flies found in food and non-food areas, contaminated and cross-contaminated food and food contact surfaces that had not been sanitized. Claiming retaliation in violation of state laws, the plaintiff seeks $1 million in damages.
A consumer has filed a putative class action alleging the Hain Celestial Group's “ColdPressed” juice products are mislabeled because a third-party company, which manufactures some of the product, heats the juice during high-pressure processing, causing a “compositional change." Davis v. Hain Celestial Grp., No. 17- 5191 (E.D.N.Y., filed September 3, 2017). The complaint challenges two product lines, BluePrint ColdPressed Juice and BluePrint Organic fruit drinks, which the plaintiff claims are represented as “raw and organic” and “never heated.” The plaintiff asserts that high-pressure processing heats the juice, causing changes in the “microbial, enzymatic and bacterial activity and intact cellular structures,” resulting in the products no longer being raw or fresh. Claiming violations of New York consumer protection laws along with fraudulent misrepresentation, implied warranty of merchantability and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
Following a bench trial, a California federal court has ruled that Fetzer Vineyards, Inc.’s “bourbon barrel aged” 1000 Stories red zinfandel wine, which features a sketch of a buffalo on its label, does not infringe the trademark or trade dress of Sazerac Co.’s Buffalo Trace bourbon. Sazerac Co. v. Fetzer Vineyards, Inc., No. 15-4618 (N.D. Cal., entered September 19, 2017). “This case was not close,” the court said. Sazerac “did not establish that Buffalo Trace’s bourbon trade dress was similar to 1000 Stories wine’s. It did not establish that Fetzer intended to infringe at the creation of its product or in its marketing. There was no evidence of actual confusion between the products … and no indication that consumers of 1000 Stories are even aware of Buffalo Trace.” The court had already limited Sazerac’s potential recovery to attorney’s fees after the company failed to provide damage calculations on a timely…
The U.S. Food and Drug Administration (FDA), the Center for Science in the Public Interest (CSPI) and the National Consumers League have filed a joint motion to stay a lawsuit intended to compel the agency to implement the delayed menu labeling rule required by the Affordable Care Act. Ctr. for Sci. in the Pub. Interest v. Price, No. 17-1085 (D.D.C., filed September 15, 2017). FDA has agreed to: (i) confirm in the Federal Register on or before December 31, 2017, that the compliance date of the rule is May 7, 2018; (ii) publish draft or final guidance by December 31, 2017; and (iii) announce by “rule, guidance, public statement, publically-available document, or otherwise,” if the compliance date could or will be extended past May 2018. If FDA fails to meet those terms, the advocacy groups may move for, and FDA will not oppose, expedited hearing of the lawsuit. Additional details appear…
The European Court of Justice (ECJ) has determined that member states cannot invoke the “precautionary principle” to restrict the cultivation and sale of crops developed from genetically modified organisms (GMOs) if the European Commission has not determined that the crops “are likely to constitute a serious risk to human health, animal health or the environment.” Case C-111/16, Italy v. Fidenato (E.C.J., entered September 13, 2017). The ruling responded to a request from an Italian court overseeing the prosecution of three farmers accused of growing GMO maize in violation of Italian law. The district court judge stayed the criminal proceedings to ask the ECJ whether Italy had the authority to ban the crop despite EC approval of its cultivation and sale. In 2013, Italy asked the European Commission to adopt emergency measures allowing member states to apply a “precautionary principle” and implement risk-management measures where “the possibility of harmful effects on…
The Organic Trade Association has filed a lawsuit to compel the U.S. Department of Agriculture (USDA) to implement the Organic Livestock Rule, which was scheduled to take effect on March 18, 2017. Organic Trade Ass’n v. U.S. Dep’t of Agric., No. 17-1875 (D.D.C., filed September 13, 2017). After 10 years of public process and hearing, USDA published the final rule in January 2017 along with formal recommendations from the National Organic Standards Board (NOSB) resulting from consultations required by the Organic Foods Production Act (OFPA). On January 20, 2017, former White House Chief of Staff Reince Priebus issued a memorandum to federal agencies directing them to temporarily postpone effective dates for regulations that had been published but had not yet taken effect. The complaint alleges that public comment should have been permitted on whether the Priebus memo applied to the Organic Livestock Rule because its standards affect only those who…
The Ninth Circuit Court of Appeals has reversed a lower court's denial of a preliminary injunction stopping the warning-label portion of San Francisco's sugar-sweetened beverage (SSB) tax from taking effect. Am. Beverage Ass'n v. City & Cty. of San Francisco, No. 16-16072 (9th Cir., entered September 19, 2017). Additional information about the complaint and denial appears in Issues 573 and 605 of this Update, and details on the enforcement delay and associated amicus briefs appear in Issues 592, 607 and 613. San Francisco's warning-label ordinance would require a warning about the health effects of SSBs—specifically, "Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay"—to occupy 20 percent of the visible portions of fixed SSB advertising, including billboards, structures and vehicles. After several industry associations challenged the requirement, the district court held that the warning was not misleading, would not place an undue burden on the plaintiffs' commercial…
12
