A California federal court has refused to certify the proposed class in a case alleging Yakult U.S.A., Inc. mislabels its probiotic yogurt drinks as providing nonexistent health benefits. Torrent v. Yakult U.S.A., Inc., No. 15-0124 (C.D. Cal., order entered January 5, 2016). The plaintiff argued that “Yakult fails to actually confer any health benefit and that there is no credible scientific evidence that the probiotics in the beverage do what Yakult claims,” and he sought to enjoin Yakult from continuing to sell the product with its allegedly false labeling. The court found that the plaintiff lacked standing to seek injunctive relief because he did not intend to buy Yakult’s product again. “Owing to his lack of standing to pursue injunctive relief,” the court said, “he has failed to provide a sound rationale for class certification under either [certification standard].” Further, “even if it were possible for [the plaintiff] to obtain…
Category Archives Issue
The U.S. Court of Appeals for the Second Circuit had upheld the conviction of a man who sold $20 million worth of counterfeit wine by mixing lower-priced wines and pouring them into the bottles of more expensive wines. USA v. Kurniawan, No. 14-2928 (2nd Cir., order entered December 22, 2015). The man challenged the search of his home on Fourth Amendment grounds, arguing that the evidence police found should have been inadmissible. The appeals court disagreed, finding that although the warrantless protective sweep had been illegal, the police affidavit provided enough additional evidence beyond what was found during the protective sweep to support issuing the warrant. Accordingly, the court affirmed a lower court’s judgment that the man must serve 10 years in prison and pay $28 million in restitution along with $20 million in forfeiture. Issue 589
The U.S. Court of Appeals for the D.C. Circuit has affirmed a lower court’s dismissal of Food & Water Watch’s challenge to the New Poultry Inspection System (NPIS). Food & Water Watch, Inc. v. Vilsack, No. 15-5037 (D.C., order entered December 22, 2015). The organization argued that the NPIS did not comply with the Poultry Products Inspection Act and would increase the risk of foodborne illnesses resulting from contaminated poultry. The lower court found that Food & Water Watch leaders did not have standing to sue because they could not show that the increased risk and probability of harm was substantial. The appeals court agreed, noting that the organization’s arguments ignored some provisions of the NPIS requiring more “offline” inspections, which could lower the risk of foodborne illness. Additional information about the lower court’s ruling appears in Issue 555 of this Update. Issue 589
A law took effect in France on January 1, 2016, that requires restaurants to provide take-away boxes to diners who request them. The law reportedly targets the country’s rising food waste problem, but may have little impact—one government-commissioned report concluded that “the obstacle is mostly cultural” because “the majority of diners don’t dare to ask for the leftovers of their meal, while the restaurateurs see it as a ‘degradation’ of their dishes.” The French do not have a term for a take-away box; many reportedly call it “le doggy bag,” but a hotel and restaurant industry union is attempting to replace the term with “le gourmet bag.” See France 24, January 4, 2016. Issue 589
With the launch of its Change4Life campaign, Public Health England (PHE) has issued a free bar code-scanning app that displays the sugar content of foods and beverages. Claiming that children ages 4 to 10 consume 22 kilograms of sugar per year—”the average weight of a 5-year-old”—the campaign also features TV, digital and outdoor advertising as well as educational packs to be distributed by schools. Among other things, PHE highlights tooth decay as “the most common reason” for hospital admissions among children ages 5 to 9. To this end, the “Smart Sugar” app allows users to scan product bar codes at supermarkets to display the sugar content in grams or cubes. According to PHE, which notes that a single serving of soda contains 9 cubes of sugar, the recommended daily maximum sugar intake is (i) “5 sugar cubes for children aged 4 to 6,” (ii) “6 sugar cubes for children aged…
The U.K. Advertising Standards Authority (ASA) has dismissed a complaint alleging that Diageo Great Britain Ltd.’s holiday commercials for Baileys™ liqueur “implied that the success of a social occasion depended on the presence or consumption of alcohol.” Despite Alcohol Concern’s claim that the tagline “IT’S NOT CHRISTMAS WITHOUT YOU… BAILEYS” was “irresponsible,” the agency agreed with Diageo Great Britain and Clearcast that consumers were likely to understand “Christmas” as a reference to the entire holiday season as opposed to a specific social occasion. “We considered that consumers would interpret the claim “IT’S NOT CHRISTMAS WITHOUT YOU” as a play on words referring to getting together with friends over the festive period, as well as referring to the fact that the drink had been traditionally associated with the Christmas period,” ASA said. “We noted that the ad showed the women enjoying one drink together, and there was no suggestion that the…
The U.S. Departments of Agriculture (USDA) and Health and Human Services (HHS) have published the 2015-2010 Dietary Guidelines for Americans, which now emphasize overall dietary patterns as opposed to nutrient quotas. Explaining that “people do not eat food groups and nutrients in isolation but rather in combination,” the guidelines offer the following “overarching” recommendations: (i) “follow a healthy eating pattern across the lifespan”; (ii) “focus on variety, nutrient density, and amount”; (iii) “limit calories from added sugars and saturated fats and reduce sodium intake”; (iv) “shift to healthier foods and beverage choices”; and (v) “support healthy eating patterns for all.” Among other things, the Dietary Guidelines specify that a healthy diet includes a variety of dark green, red, orange, and starchy vegetables as well as legumes; whole fruits; grains and whole grains; fat-free or low-fat dairy products and/or fortified soy beverages; a variety of proteins, such as seafood, lean meats,…
A new Cornucopia Institute report examines four methods of organic egg production—pasture-based with mobile housing, “pasture raised” using fixed housing with access to adjacent pastures, fixed housing with minimum outdoor access and industrial scale. Titled “Scrambled Eggs: Separating Factory Farm Egg Production from Authentic Organic Agriculture,” the analysis also discusses animal welfare standards and evaluates animal welfare labels. An accompanying “scorecard” rates various brands of eggs based on 28 criteria, showcasing the “true heroes, including national and local producers that are supplying ethically-produced organic eggs and are worthy of consumer support.” See Cornucopia News Release, December 15, 2015.
A group of public health policy professionals has proposed a multidisciplinary approach to public health law, arguing that public health professionals should receive training in a variety of disciplines to "promote full recognition and [the] optimal role of law in public health." Scott Burris et al., "A Transdisciplinary Approach to Public Health Law: The Emerging Practice of Legal Epidemiology," Annual Review of Public Health, November 30, 2015. The article describes a history of the overlap between public health policy and legal expertise, and then proposes a more inclusive model of training that "adds scientific practices to the lawyerly functions of normative and doctrinal research, counseling, and representation." Issue 588
Photographer Mitchel Gray has reportedly filed a lawsuit against Jeff Koons alleging that one of the artist's works infringes on Gray's copyright to a photo used in a Gordon's® gin advertisement in 1986. The ad portrays a photo of a woman painting on the beach and a man seated next to her, a photo of a bottle of Gordon's® and the tagline "I could go for something cool, crisp and Gordon's." Koons' version, which uses the photo with slightly adjusted colors, a bottle of Gordon's® in a different spot and the tagline "I could go for something Gordon's," sold for $2.04 million at auction in 2008. The complaint reportedly asserts that Koons never contacted Gray for permission to use the photo and never provided him any compensation from the proceeds of the auction, citing for added support Koons' testimony from a similar infringement case filed in 1989 involving a different…
