A staff report from a subcommittee of the U.S. House of Representatives' Committee on Oversight and Reform has found that several baby foods contain high levels of heavy metals, including inorganic arsenic, lead, cadmium and mercury. The report argues that the U.S. Food and Drug Administration (FDA) "has failed to confront the risks of toxic heavy metals in baby food" and has "designed these limits to be protective of industry." "In one category of baby food for which FDA has finalized a standard—infant rice cereal—it set the maximum inorganic arsenic content at the dangerous level of 100 ppb. Why did FDA set its level so high? Because in developing the limit, FDA was focused on the level of inorganic arsenic that would cause cancer. FDA disregarded the risk of neurological damage, which happens at a much lower level," the report asserts. The report notes the trust that consumers place in…
Category Archives Issue 759
A plaintiff has filed a putative class action alleging Demoulas Super Markets Inc. includes representations on its Market Basket coffee indicating that the tins hold 76 to 79 cups of coffee but only contain 37 to 39 cups when prepared according to the label's instructions. Cohen v. Demoulas Super Mkts. Inc., No. 21-10177 (D. Mass., filed February 2, 2021). "This means that consumers of the Products, including Plaintiff, were cheated out of 51% of the servings they paid for, in both cases, based on the advertising, marketing, and labeling of the Products," the complaint asserts. The plaintiff alleges claims of unjust enrichment as well as breach of express warranty and untrue and misleading advertising under Massachusetts General Laws.
A New York federal court has dismissed some claims while allowing others to continue in a lawsuit alleging Whole Foods Market Group Inc. misleads consumers by not using graham flour to produce or honey to sweeten its "honey graham crackers." Campbell v. Whole Foods Mkt. Grp. Inc., No. 20-1291 (S.D.N.Y., entered February 2, 2021). The court found that the plaintiff adequately pleaded allegations that "the references to 'honey' and 'graham' on the product’s packaging are likely to lead a reasonable consumer to wrongly believe that these graham crackers contain more whole-grain flour than non-whole grain flour, and that honey is their predominant sweetener," so claims under the New York General Business Obligation Law can continue. The court dismissed a claim of negligent misrepresentation, finding the plaintiff "failed to allege the existence of a special relationship giving rise to a duty to speak on the part of the Defendant." The plaintiff's…
A California federal court has denied a motion to dismiss an advocacy group lawsuit brought against the U.S. Department of Agriculture (USDA) challenging the implementation of the Food Safety and Inspection Service's New Swine Inspection System (NSIS). Ctr. for Food Safety v. Perdue, No. 20-0256 (N.D. Cal., entered February 4, 2021). The plaintiffs, several advocacy groups including the Center for Food Safety and Food & Water Watch, argued that the rule change violated the Administrative Procedure Act. The court found that the plaintiffs could reasonably argue a "credible threat," a standard in threatened environmental harm cases that "also applies to food safety cases such as this one." "Here, Plaintiffs allege that the new NSIS procedures outlined in the Final Rule erode several important features of the traditional inspection process increasing the likelihood that adulterated pork products will enter the food supply and thus putting their members at risk of illness…
A coalition of advocacy groups has filed a complaint with the Federal Trade Commission (FTC) asserting that Smithfield Foods misleadingly markets its pork products as "produced in an environmentally responsible and sustainable way" despite the company's production methods allegedly falling "far below the level of environmental sustainability that a reasonable consumer would expect based on the company’s representations." The complaint further argues that "Smithfield touts its use of anaerobic digesters to produce methane from its pollution-laden waste as a sustainable innovation and solution to Smithfield’s climate damaging production practices—a falsehood that capitalizes on an issue of growing importance to consumers." The petitioners include Food & Water Watch, Socially Responsible Agriculture Project and organizations from Iowa, Missouri and Pennsylvania.
Shook Partner Jim Muehlberger and Of Counsel John Johnson III have authored an article for Law360 detailing litigation targeting honey producers. "Honey producers have sometimes been accused of diluting their product with syrup," they explain. "They have also faced many other accusations, including that their honey contains contaminants, that it lacks some key quality characteristic, or that its country of origin has been wrongly declared." The article discusses the relevant U.S. Food and Drug Administration regulations, noting that the agency "has not generally developed legally enforced quality parameters for honey," as well as litigation targeting the product. "In the 2010s, a wave of litigation focused on filtered honey, which has the pollen removed from it to meet consumer preferences for characteristics like increased clarity and slower crystallization. In these suits, the plaintiffs alleged that the filtered honey was not honey because, according to some definitions, '[no] pollen … may be removed except where this is unavoidable in…
