“Today many plastic products, from sippy cups and blenders to Tupperware containers, are marketed as BPA-free. But [George Bittner’s] findings—some of which have been confirmed by other scientists—suggest that many of these alternatives share the qualities that make BPA [bisphenol A] so potentially harmful,” writes Mariah Blake in a new investigative report examining the purported effects of BPA-free plastic on human health. Published in the March/ April 2014 issue of Mother Jones, the report relies on research conducted by CertiChem, a laboratory founded by University of Texas-Austin Neurobiology Professor George Bittner, whose previous work in Environmental Health Perspectives claimed that “almost all” store-bought food containers “tested positive for estrogenic activity,” including those marketed as BPA-free. In particular, the report points to these findings as evidence that the independent studies used by industry and regulatory authorities are unreliable. “Many of the same scientists who were involved in doing tobacco industry research are…
Category Archives Issue
A South Dakota court has determined that most of the claims filed by the makers of lean finely textured beef (LFTB) against ABC News, certain news correspondents, including Diane Sawyer, and former U.S. Department of Agriculture (USDA) employees may proceed. Beef Prods., Inc. v. Am. Broadcasting Cos., Inc., No. 12-292 (Union Cty. Cir. Ct., S.D., order entered March 28, 2014). Information about the lawsuit appears in Issue 453 of this Update. While the court found the plaintiffs’ claims for common law disparagement preempted by a state statute addressing the elements of a disparagement cause of action, available relief and statute of limitations, it limited its dismissal with prejudice to those alleged tortious statements expressly stating or implying that the product is not safe for human consumption. As to the defamation claims, the court found that the three plaintiffs were appropriate parties because the complaint sufficiently alleged that people who heard the…
Diageo Americas Supply, Inc. has filed a declaratory judgment action against the Tennessee Alcoholic Beverage Commission director challenging the constitutionality of a 1937 law that requires licensed alcohol beverage makers in the state to store their products “only within the county authorizing the operation or in a county adjacent to the county authorizing the manufacturing operation, and such possession shall be limited to storage facilities of such manufacturer” (Storage Law). Diageo Americas Supply, Inc. d/b/a George A. Dickel & Co. v. Bell, No. 14-0873 (M.D. Tenn., filed March 28, 2014). Alleging that the law has never been enforced, the complaint includes the defendant’s March 20 letter warning the company that it was in violation of the Storage Law because it “is storing product (manufactured/distilled alcoholic beverages) produced at its Tullahoma, Tennessee, distillery in warehouses located in Louisville, Kentucky.” According to the company, most of its distilled alcohol beverages are stored on-site…
A federal court in California has dismissed the claims of one named plaintiff in a putative class action alleging that certain Costco Kirkland branded products are misbranded and deceptive, and narrowed the claims of the other named plaintiff. Thomas v. Costco Wholesale Corp., No. 1202908 (N.D. Cal., order entered March 31, 2014). The plaintiff whose claims were dismissed for lack of standing had alleged that the “0 grams trans fat” labeling on Kirkland Signature Kettle Chips was untruthful or misleading. The court agreed with the defendant that she had not cured the standing defects in her second amended complaint (SAC) and thus dismissed her claims with prejudice. Among other matters, she failed to (i) allege that the chips she purchased included any amount of trans fat or that she received a product different from the one as labeled, (ii) demonstrate that the label violated 21 C.F.R. § 101.13(h)(1), or (iii)…
A federal court in California has granted in part and denied in part the motion to dismiss filed in a putative class action against Whole Foods Market. Pratt v. Whole Foods Mkt. Cal., Inc., No. 12-5652 (N.D. Cal., order entered March 31, 2014). The claims relate to a number of 365 Everyday Value® products that the plaintiff purchased and involve the following allegedly unlawful or misleading label representations: “evaporated cane juice” (ECJ), “natural” and “no sugar added.” Because the plaintiff abandoned in his amended complaint all claims regarding the defendants’ whipped topping product, the court dismissed all claims based on this product with prejudice as to the plaintiff and without prejudice as to any putative class member. The “no sugar added” claims were thus dismissed, “as the only product alleged to have such a misleading claim was the whipped topping.” The court also emphasized that, per its August 2013 order, any claims…
A federal court in Kentucky has determined that distillery neighbors may proceed with state law-based tort claims alleging that the facility’s emissions cause “whiskey fungus” to accumulate on their real and personal property. Merrick v. Diageo Americas Supply, Inc., No. 12-0334 (W.D. Ky., Louisville Div., order entered March 19, 2014). Additional details about the lawsuit appear in Issue 444 of this Update. Finding conflicting authority on whether the Clean Air Act (CAA) preempts the plaintiffs’ claims for negligence and gross negligence, temporary and permanent nuisance and trespass, the court carefully analyzed related U.S. Supreme Court, federal court and state court rulings. It concluded that the Third Circuit’s analysis in Bell v. Cheswick Generating Station, 734 F.3d 188 (3d Cir. 2013), and the Sixth Circuit’s in Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d (6th Cir. 1989), “capture the prevailing law for…
New Jersey lawmakers have introduced a bill (A2990) that seeks to amend legislation requiring retail food establishments to provide calorie information for food and beverages. Proposed by Assemblywomen Nancy Pinken (D-Middlesex) and Linda Stender (D-Middlesex, Somerset and Union), the bill would require entertainment facilities to provide calorie information for food and beverage items offered for sale, subject to the same requirements that currently apply to chain restaurants. The bill defines “entertainment facility” as “any privately or publicly owned or operated facility that is used primarily for sports contests, entertainment, or both, such as a theater, stadium, museum, arena, automobile racetrack, or other place where performances, concerts, exhibits, games or contests are held.” Issue 519
After review by member states and unanimous agreement by the Member State Committee, the European Chemicals Agency (ECHA) has published a group of evaluation decisions on 14 substances considered to pose potential risks, creating obligations for companies in the European Union to conduct tests and provide further data about their use. The decisions are the culmination of the European Parliament Council’s substance evaluation process under Regulation No. 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). In addition to bisphenol A, ECHA has made final decisions on the following substances: isoheptane; imidazole; a mixture of cistetrahydro-2-isobutyl- 4-methylpyran-4-ol; transtetrahydro-2-isobutyl-4-methylpyran-4-ol; oligomerisation and alkylation reaction products of 2 phenylpropene and phenol; N,N’-bis(1,4-dimethylpentyl)-p-phenylenediamine; carbon tetrachloride; 1,3-diphenylguanidine; hexyl salicylate; 2,2’-iminodiethanol; 2-ethylhexanoic acid; decahydronaphthalene; alkanes, C14-17, chloro (MCCP, Medium chained chlorinated paraffins); and 2-(4-tertbutylbenzyl) propionaldehyde. Issue 519
The European Food Safety Authority (EFSA) will host a workshop on April 28, 2014, in Brussels, to discuss the agency’s work related to the re-evaluation of food additives, as required by Commission Regulation No. 257/2010 of the European Parliament and the Council on Food Additives. With an aim to “engage with interested business operators, scientific experts, the European Commission representatives, EFSA scientific staff and other interested parties,” the workshop will include sessions that address (i) “why, how and when scientific uses, use level data and other information should be made available to EFSA”; and (ii) “the extent to which the engagement of stakeholders during the re evaluation process would be of mutual benefit for EFSA and stakeholders themselves.” Participants may register until April 10, 2014. Issue 519
The U.S. Environmental Protection Agency (EPA) has issued a stop sale, use or removal order against New Jersey-based Pathway Investment Corp. concerning company food storage products containing nano silver. According to the agency, these products—Kinetic Go Green Premium food storage containers, Kinetic Smartwist Series containers, TRITAN food storage, and StackSmart Storage—are marketed “as containing nano silver, which the company claims helps reduce the growth of mold, fungus and bacteria.” As such the products contain pesticides and must be registered under the Federal Insecticide, Fungicide and Rodenticide Act. These products were not registered and were not subjected to efficacy testing. EPA has also notified retailers that have sold the products on their websites to cease doing so. See EPA News Release, March 31, 2014. Issue 519
