New York Times op-ed writer Mark Bittman, who frequently writes about food-related issues and calls for changes in government policy to address over- or unhealthy-consumption problems, has found an ally in City University of New York School of Public Health Professor Nicholas Freudenberg who has authored a new book titled Lethal but Legal: Corporations, Consumption, and Protecting Public Health. Freudenberg, who serves as faculty director for the New York City Food Policy Center, apparently explains how the food and beverage, tobacco, alcohol, firearms, pharmaceutical, and automotive industries have used the playbook created by “the corporate consumption complex” of corporations, banks, marketers, and others that purportedly promote and benefit from unhealthy lifestyles. Freudenberg takes issue with what he perceives as their message that anything restricting rights “to smoke, feed our children junk, carry handguns and so on” is un-American. According to Bittman, Freudenberg’s grouping of these industries “gives us a better…
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A three-attorney, Pasadena, California-based law firm has filed numerous 60-day notice letters since March 2013 to companies that make alcoholic beverages, warning that they have failed to comply with a section of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) by selling without the required warnings (i) “alcoholic beverages, when associated with alcohol abuse,” (ii) “ethyl alcohol in alcoholic beverages,” and (iii) “ethanol in alcoholic beverages.” The letters, filed on behalf of John Bonilla, Rafael Delgado, Jesse Garrett, and Rachel Padilla, assert that the companies have sold their products in the state without first indicating to consumers under “Title 27, CCR § 25603(e)(1): ‘WARNING: Drinking Distilled Spirits, Beer, Coolers, Wine and Other Alcoholic Beverages May Increase Cancer Risk, and, During Pregnancy, Can Cause Birth Defects.’” According to a news source, four individuals have filed Prop. 65 violation lawsuits in the Los Angeles County Superior Court, alleging…
A California appeals court has affirmed the dismissal of Proposition 65 (Prop. 65) lawsuits filed against fast-food restaurants by the vegetarian and animal-rights advocacy organization Physicians Committee for Responsible Medicine (PCRM), finding that the organization failed to conduct the requisite investigation into the warning signs posted in the defendants’ restaurants before certifying the merit of its 60-day notices to the companies, attorney general and local prosecuting entities. PCRM v. Applebee’s Int’l, Inc., No. B243908 (Cal. Ct. App., decided February 27, 2014). At issue were warnings about the chemical PhIP, known to the state to cause cancer, created during the chicken grilling process. Details about the lower court’s ruling appear in Issue 450 of this Update. Reciting the lengthy litigation history, which involved a number of amended complaints, the court emphasized the statements that the plaintiff’s counsel made during hearings on demurrers to the pleadings and deemed them binding admissions that…
According to a news source, the plaintiffs and defendants in litigation over a respiratory condition allegedly caused by the daily consumption of microwave popcorn containing the butter-flavoring compound diacetyl have settled the claims following a court’s reduction of the jury’s $7-million verdict to $5.78 million, including fees and costs. Watson v. Dillon Cos., Inc., No. 08-91 (D. Colo.). Additional details about the litigation appear in Issue 497 of this Update. Plaintiffs’ counsel Ken McClain reportedly indicated that the settlement terms were confidential. See Law360, February 24, 2014. Issue 515
A federal court in New York has refused to dismiss claims alleging that Bumble Bee Foods is strictly liable for and was negligent in failing to warn about the mercury in its products in a lawsuit alleging personal injury from excessive consumption of the company’s tuna products, which contain methylmercury. Porrazzo v. Bumble Bee Foods, LLC, No. 10-4367 (S.D.N.Y., order entered February 27, 2014). An earlier ruling in the case is summarized in Issue 413 of this Update. The plaintiff, who apparently consumed one to two cans of tuna daily for more than two years and was diagnosed with dangerously high levels of mercury in his body, also brought claims for breach of implied warranty of merchantability and violations of certain state statutory provisions involving agricultural and business law. The court found that the issues argued in Bumble Bee’s motion for summary judgment involved genuine issues of material fact that…
A federal court in New York has denied the motion for summary judgment filed by the defendant in litigation alleging that it mislabeled its industrially processed olive-pomace oil as “100% Pure Olive Oil.” Ebin v. Kangadis Food Inc. d/b/a The Gourmet Factory, No. 13-2311 (S.D.N.Y., order entered February 25, 2014). Details about the court’s grant of the plaintiffs’ motion to certify a class appear in Issue 507 of this Update. The court rejected, again, the defendant’s argument that its Capatriti olive-pomace oil is, as a matter of law, olive oil. According to the court, “there exists more than sufficient evidence for a trier of fact to determine that Capatriti is not 100% pure olive oil. Capatriti has more trans-fat and fewer antioxidants than virgin olive oil, is tasteless, is made from the seed and skin rather than the flesh of the olive, and undergoes chemical treatment with solvents, rather than a…
A federal court in California has granted a motion for sanctions filed by Jackson Family Wines, which brought an infringement action against Diageo North America; an adverse inference instruction will be given to the jury during trial, and the plaintiff will be able to recover the costs of its efforts to secure a Diageo marketing department employee’s documents, destroyed while the lawsuit was pending. Jackson Family Wines v. Diageo N. Am., Inc., No. 11-5639 (N.D. Cal., order entered February 14, 2014). At issue in the litigation is the alleged infringement of Jackson’s La Crema wine by Diageo’s Crème de Lys wine brand. The employee whose laptop was “imaged” outside the firm after she temporarily left Diageo’s employ was, in Diageo’s words, “the conduit between Diageo’s marketing team and Northstar [Research Partners, LLC], the third-party market research company” that conducted focus groups for the selection of the Crème de Lys brand.…
A federal multidistrict litigation (MDL) court in Pennsylvania has determined that individual-purchaser plaintiffs and a direct-purchaser class failed to discover evidence that U.S. chocolate companies conspired to increase prices for immediate-consumption products between 2002 and 2007, and, with “nothing more than speculation as to the who, what, when, where, and how of communications that allegedly facilitated the parallel price increases,” the court was compelled to grant the defendants’ motions for summary judgment on the plaintiffs’ Section 1 antitrust claims under the Sherman Act. See In re Chocolate Confectionery Antitrust Litig., MDL No. 1935 (M.D. Pa., decided February 26, 2014). The litigation involves some 91 lawsuits transferred to the MDL court for pre-trial proceedings. Defendants Nestlé U.S.A., Inc., The Hershey Co., and Mars, Inc. and Mars Snackfood U.S. LLC control about 75 percent of the U.S. chocolate-products market, and during the relevant time period, which saw prices for cocoa increase 53…
In response to requests from trade associations representing meat industry interests, California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the comment period on its proposal to list nitrite in combination with amines or amides as known to the state to cause cancer under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). If these substances are added to the Prop. 65 list, companies making products containing them will be required to provide warnings to California consumers. Comments are now requested by May 8, 2014. See OEHHA News Release, February 28, 2014. Meanwhile, OEHHA has also issued the agenda for the March 27, 2014, meeting of the Biomonitoring California Scientific Guidance Panel, which will convene in Oakland; the meeting will be accessible via Webinar. Program and laboratory updates are on the agenda, and the panel will also discuss chromium as a potential designated chemical and…
California Senator Noreen Evans (D-Santa Rosa) has introduced legislation (S.B. 1381) that would require labeling for genetically engineered (GE) foods but also place limits on potential litigation arising from the failure to label such products. Under the California Right to Know Genetically Engineered Food Act, “any raw agricultural commodity or packaged food that is entirely or partially produced with genetic engineering” would need to bear labels stating that the product in question was “Produced with Genetic Engineering” or “Partially Produced with Genetic Engineering.” The bill would allow the state attorney general or an injured resident “to bring an action for injunctive relief against a violation of these provisions, as specified.” Unlike previous efforts, however, the current proposal would “authorize a court to award a prevailing plaintiff reasonable attorneys’ fees and costs, and would prohibit a court from awarding monetary damages in an action brought under the bill’s provisions.” It would…
