Echoing a putative class action filed in Massachusetts federal court on August 1, 2014, a plaintiff has filed a lawsuit against Whole Foods Market in Pennsylvania state court accusing the retailer of mislabeling its 365 Everyday Value yogurt’s sugar content as 2 grams despite containing 11.4 grams, according to test results published in the July issue of Consumer Reports. Clemente v. Whole Foods Market Inc., No. 140801271 (Ct. of C.P. of Pa., Philadelphia Cty., filed August 11, 2014). The plaintiffs accuse Whole Foods of knowingly mislabeling its yogurt, citing a statement on the Whole Foods website that allegedly reads, “Our Private Label registered dietician reviews each nutrition label for accuracy and completeness before the label is printed. All attempts are made to review nutrition labels on a regular basis to ensure accuracy.” In the complaint, the plaintiffs argue, “Unless this statement on Defendant’s website is false, then Whole Foods Market was…
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As the criminal prosecution of Peanut Corp. of America executives continues into its second week, the former south Georgia peanut-processing plant manager reportedly admitted lying to federal investigators about positive tests for Salmonella in company products and the frequency of testing “to play damage control, [and in an effort] to protect the company.” According to news sources, Samuel Lightsey, who agreed to plead guilty to seven criminal counts to reduce his potential prison sentence in exchange for his testimony against his former colleagues, also testified that the company cheated on safety testing by switching samples and shipping thousands of pounds of peanut products after learning they were contaminated or before testing could be completed. The contaminated peanut paste, traced to the Peanut Corp. facility, allegedly sickened more than 700 people and killed nine in a 2008-2009 Salmonella outbreak that led to one of the largest food recalls in U.S. history.…
Following similar decisions from courts across the country, two California federal courts have delayed final rulings in cases accusing Kashi and Trader Joe’s of mislabeling their products by using the term “evaporated cane juice” (ECJ) in their ingredient lists rather than simply “sugar,” which the plaintiffs allege is the same substance. Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., order entered August 7, 2014); Saubers v. Kashi Co., No. 13-899 (S.D. Cal., order entered August 11, 2014). In the proposed class action against Kashi, the plaintiffs accused the Kellogg-owned company of “misbranding” more than 75 different food products by listing ECJ instead of sugar on its labels to conceal its inclusion in the foods. The court found that the plaintiffs’ claims relied “heavily, if not entirely, on the premise that the [U.S. Food and Drug Administration (FDA)] has concluded that ‘evaporated cane juice’ is not the common or usual name…
The U.S. Environmental Protection Agency (EPA) and several conservation groups have agreed to a settlement that limits pesticide use near salmon habitats in three states in a lawsuit accusing the agency of failing to assess the effects of pesticides on salmon despite a 2004 court decision ordering it to consult with National Marine Fisheries Service (NMFS) on the issue. Nw. Ctr. for Alts. To Pesticides v. EPA, No. 10 1919 (W.D. Wash., stipulated settlement agreement filed August 13, 2014). The settlement bans aerial spraying of five pesticides—carbaryl, chlorpyrifos, diazinon, malathion, and methomyl—within 300 feet and ground applications within 60 feet of salmon habitats in California, Oregon and Washington. The restrictions will be in place while NMFS analyzes the impact of the pesticides on salmon, and according to the settlement, EPA will then be required to enact permanent protections based on the findings. The Fourth Circuit struck down similar provisions in 2013…
A Michigan federal court has denied a motion filed by FPC Flexible Packaging Corp. and The International Group, Inc. to dismiss evidence for spoliation in a case accusing the packaging company and the wax maker of providing Kellogg defective cereal liners, resulting in a $70 million recall. Kellogg Co. v. FPC Flexible Packaging Corp., No. 11-272 (U.S. Dist. Ct., W.D. Mich., S. Div., order entered August 12, 2014). Kellogg allegedly received several consumer complaints of unusual odors in its products, and the company said it obtained samples of products from two of the consumers. The cereal samples have since disappeared, but Kellogg preserved a piece of the plastic liner provided by one of the consumers. International and FPC argued that the loss of evidence could not have been accidental because Kellogg managed to keep the sample of the liner, but the court dismissed their arguments. “An appropriate jury instruction addressing the use…
A California federal court has dismissed several of the plaintiffs’ claims in a putative class action accusing Frito-Lay North America Inc. of mislabeling its Rold Gold pretzels as “low fat,” “fat free” or “all-natural” despite allegedly containing high sodium levels and unnatural ingredients. Figy v. Frito-Lay North America Inc., No. 13-3988 (N.D. Cal., order entered August 12, 2014). The court found that the plaintiffs had standing to sue on behalf of purchasers of several non-purchased products because Frito-Lay’s health claims were the same for each and the only difference was the shape of the pretzel products. The court then dismissed several of the plaintiffs’ claims. It found that it did not have subject matter jurisdiction to grant injunctive relief because Frito-Lay had triggered the plaintiffs’ obligation to prove jurisdiction by submitting declarations and extrinsic evidence of the plaintiffs’ lack of standing to seek an injunction, and the plaintiffs had then failed to…
The U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) has announced plans to implement “new traceback procedures when FSIS or another agency finds raw ground beef or bench trim presumptive positive for Escherichia coli O157:H7.” Under the new system, which takes effect October 14, 2014, the agency will ask suppliers to recall products that test positive for E. coli O157:H7 later in the supply chain if FSIS or another agency determines that contamination most likely occurred at the supplier’s establishment and if the product in question was sent to other grinding facilities. As explained in an August 13, 2013, press release, these new procedures “will allow the agency to trace contaminated ground beef back to its source more quickly, remove it from commerce, and find the root cause of the incident to prevent it from recurring.” To this end, FSIS will begin traceback investigations as soon as it…
The U.S. Food and Drug Administration (FDA) has amended food additive regulations pertaining to the safe use of vitamin D3 in response to a petition from Abbott Laboratories. The company requested that FDA approve use of the fat-soluble hormone “as a nutrient supplement at levels not to exceed 500 IUs per 240 mL in meal replacement beverages that are not intended for special dietary use in reducing or maintaining body weight and that are represented for use such that that the total amount of vitamin D3 provided by the product does not exceed 1,000 IU per day, and at levels not to exceed 1.0 IU per kilocalorie in food represented for use as a sole source of nutrition for enteral feeding.” Objections to FDA’s approval of Abbott’s petition or requests for a hearing must be filed by September 11, 2014. See Federal Register, August 12, 2014. Issue 534
The U.S. Food and Drug Administration (FDA) has released an executive report summarizing the data collected by the National Antimicrobial Resistance Monitoring System (NARMS) since 1996. Implemented by FDA, the Centers for Disease Control and Prevention, and the U.S. Department of Agriculture, NARMS tracks antibiotic resistance in foodborne bacteria, focusing on antibiotics “that are considered important to human health as well as multidrug resistance [MDR]” to three or more antibiotic classes. According to an August 11, 2014, news release, FDA identified “positive and negative trends in antimicrobial resistance in bacteria isolated from humans, retail meats and food animals.” For non-typhoidal Salmonella, which showed no resistance in 85 percent of samples isolated from humans, the report found that “MDR among humans, slaughtered chicken and slaughtered swine was the lowest [in 2011] since testing began,” though “MDR Salmonella from retail poultry meats generally increased.” NARMS also concluded that “erythromycin resistance in Campylobacter jejuni…
The D.C. Circuit Court of Appeals has vacated a panel’s March 28, 2014, denial of the motion for preliminary judgment filed by meat producer interests in litigation challenging U.S. Department of Agriculture (USDA) regulations requiring retailers of “muscle cuts” of meat to list the countries of origin and production (country-of-origin labeling, or COOL) as to each step of production—born, raised or slaughtered. Am. Meat Inst. v. USDA, No. 13-5281 (D.C. Cir., order entered April 4, 2014). Additional information about the March 28 decision appears in Issue 518 of this Update. A court majority voted to rehear the case before the full court on May 19 and ordered the parties to brief a supplemental issue: “Whether, under the First Amendment, judicial review of mandatory disclosure of ‘purely factual and uncontroversial’ commercial information, compelled for reasons other than preventing deception, can properly proceed under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651…
