Category Archives Issue 738

Several dispensaries of recreational marijuana in Massachusetts have filed a lawsuit alleging that Governor Charlie Baker exceeded his authority by classifying recreational-use marijuana retail establishments as non-essential while declaring medical-marijuana dispensaries and liquor stores as essential during a statewide shutdown to combat the spread of COVID-19. CommCan Inc. v. Baker, No. 2084CV00808 (Mass. Super. Ct., filed April 8, 2020). The complaint asserts that Massachusetts “seems to be the only state that has deemed medical marijuana essential but adult-use/recreational marijuana non-essential” and argues that California, Colorado, Illinois, Nevada and Washington classified both types of establishment as essential. The plaintiffs also include a Nantucket recreational-use dispensary and a war veteran who obtains marijuana from the dispensary for medical purposes because the nearest medical dispensary is more than an hour away. The court has reportedly denied an initial request for a preliminary injunction on the executive order.

By Partner Lindsey Heinz and Associate Zac Parker The U.S. Food and Drug Administration (FDA) sent warning letters to Jimmy John’s Franchise, LLC and its supplier Sprouts Unlimited Inc. regarding food safety practices after the agency traced an outbreak of E. coli to Jimmy John’s produce, which had previously caused outbreaks of foodborne illnesses. In the letter to Jimmy John’s, FDA focused on the company's prior sales of adulterated products, its misrepresentations to FDA regarding the sourcing of its sprouts, and the need for Jimmy John’s to demonstrate “long-term, sustainable corrections” that would prevent these outbreaks in the future. It comes as no surprise that letters like these make headlines and risk hurting a food supplier’s reputation. In light of these warning letters and the concerns raised by potential outbreaks of the new coronavirus COVID-19, food manufacturers must be vigilant about supply chain management, whether at the growing, transporting, processing or…

The U.S. Food and Drug Administration has released its plan to combat outbreaks of Shiga toxin-producing E. coli (STEC) carried by leafy greens. "Due to the reoccurring nature of outbreaks associated with leafy greens, FDA has developed this commodity-specific action plan," the announcement states. "Expediting the improved safety of leafy greens will require collaboration between FDA and stakeholders in the public and private sectors, including industry and our regulatory partners. This plan is designed to help foster a more urgent, collaborative, and action-oriented approach." The plan details actions on prevention, response and addressing knowledge gaps.

The Center for Food Safety (CFS) and several agricultural firms have filed a lawsuit against the U.S. Department of Agriculture (USDA) challenging the agency's denial of the group's petition seeking to ban organic certification of hydroponic food growers. Ctr. for Food Safety v. Perdue, No. 20-1537 (N.D. Cal., filed March 2, 2020). USDA denied CFS's January 2019 petition, and CFS argues that the denial was arbitrary and capricious and violates the Organic Foods Production Act (OFPA). The complaint asserts that USDA ignored the National Organic Standards Board's 2010 recommendation against certifying hydroponic operations as organic and "issued a blanket statement" allowing certification that contradicted the recommendation of the board and a hydroponics task force. "USDA offered no supporting rationale for its statement. USDA made the statement in a website announcement, without any opportunity for public input and without taking any rulemaking action," the plaintiffs argue. Further, "USDA failed to explain…

Two consumers have filed a putative class action alleging that Tropicana misleads consumers by implying that its products are natural despite containing malic acid. Willard v. Tropicana Mfg. Co., No. 20-1501 (N.D. Ill., filed February 28, 2020). The complaint argues that Tropicana "tricks consumers" into buying products by "omitting the legally required disclosures" about artificial flavoring because the juice products list malic acid—which the plaintiff asserts is the synthetic flavoring form, dl-malic acid—as an ingredient. Tropicana "intended to give reasonable consumers like the Plaintiff the impression that the Products are pure, natural, and not artificially flavored, by packaging, labeling, and advertising the Products" with depictions of fresh fruit and names such as "Farmstand Apple," the plaintiffs assert. For alleged violations of Illinois and California consumer-protection statutes, they seek class certification, injunctions, damages and attorney's fees.

A plaintiff has alleged that Frito-Lay North America Inc. fails to include a mandated front-of-package disclosure that its Cheddar and Sour Cream chips are flavored with artificial flavoring. Ithier v. Frito-Lay N. Am. Inc., No. 20-1810 (S.D.N.Y., filed March 1, 2020). The complaint asserts that "[b]ased on flavor composition analysis of the Products, the artificial flavor consists of compounds associated with butter flavor," and "butter flavor is known as enhancing and boosting the flavor of cheddar cheese." Thus, according to the plaintiff, the flavor of the chips should be listed as "Artificially Flavored Cheddar & Sour Cream." The plaintiff alleges fraud, unjust enrichment, negligent misrepresentation, breach of warranties and a violation of New York's consumer-protection statute, and he seeks class certification, injunctive relief, damages and attorney's fees.