Yale University Psychology Professor Kelly Brownell has published a collection of essays with co-editor Mark Gold, Food and Addiction: A Comprehensive Handbook, that, according to Amazon.com “brings scientific order to the issue of food and addiction, spanning multiple disciplines to create the foundation for what is a rapidly advancing field and to highlight needed advances in science and public policy. The book assembles leading scientists and policy makers from fields such as nutrition, addiction, psychology, epidemiology, and public health to explore and analyze the scientific evidence for the addictive properties of food.” New York University Nutrition Professor Marion Nestle calls the work “an instant classic.” She notes that the edited pieces included in the book range from “the seriously scientific to the thoroughly anecdotal.” Asking whether food is “addictive in ways similar to alcohol or cocaine,” Nestle states, “In some ways yes, maybe, and no. Read it and decide for…
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According to news sources, the Dusseldorf Regional Court has refused a request for preliminary injunction filed by Nestlé seeking to stop competitors from selling capsules that fit its Nespresso™ coffee makers in Germany. The court reportedly ruled that Nestlé’s patent for the machine does not extend to capsules sold at a lower price by two other Swiss firms. Defendants Ethical Coffee and Betron market their products in a number of European countries as “usable for Nespresso machines.” The rival capsules are about a third less expensive than the Nestlé capsules. The company, which has aggressively defended its Nespresso™ business—worth $3.6 billion worldwide—can apparently either ask the court for a full civil-trial process or appeal the ruling. See The New York Times, Associated Press and Bloomberg, August 16, 2012.
A California winery has filed a complaint against Anheuser-Busch, LLC seeking a declaration that the winery has not infringed any of the brewer’s protectable trademark rights and that the winery’s use of the BOW TIE word mark and Bow Tie slogan to sell its wine “does not constitute unfair competition.” San Antonio Winery, Inc. v. Anheuser-Busch, LLC, No. 12-7067 (C.D. Cal., filed August 16, 2012). The winery claims that it started using the BOW TIE word mark in the United States in 2012 and had filed a trademark application for the mark in November 2011. After the application was published for opposition, Anheuser-Busch allegedly demanded that the winery abandon the application and refrain from using the BOW TIE word mark on the ground that the brewer held design marks depicting bow ties and that “there is a likelihood of consumer confusion, mistake, or deception between San Antonio’s BOW TIE Word Mark…
Four migrant farmworkers have filed suit against farm labor contractors who allegedly “recruited undocumented field workers in Mexico and the United States to work on farms (‘growers’) and relied on a pattern of threats, violence, harassment, and indebtedness to force Plaintiffs and other migrant farmworkers to perform grueling, back-breaking manual labor as Defendants transported the workers between several states including Florida, Illinois, Georgia, Mississippi, and New York.” John Does I-IV v. Sunrise Labor Corp., No. 12-80883 (S.D. Cal., filed August 20, 2012). According to the complaint, the individual defendants face federal criminal charges for hiring unauthorized aliens. Among other matters, the anonymous plaintiffs allege that the defendants imposed debts on them—involving fees paid to “coyotes” to smuggle them across the border and charges for food, rent and remittances to their families—threatened them with injury or death, did not pay them compensation to which they were entitled, forced them to work when…
The Equal Employment Opportunity Commission (EEOC) has filed a Title VII civil rights action against a Burger King restaurant claiming that it failed to accommodate the religious beliefs of a Pentecostal Christian woman who sought to wear skirts or dresses to work instead of uniform pants. EEOC v. Fries Rest. Mgmt., LLC, No. 12-3169 (N.D. Tex., filed August 22, 2012). The employee was hired as a cashier and had allegedly been informed when she interviewed for the position that she could wear a skirt to work, an accommodation she required because she “adheres to an interpretation of the scripture that requires women to wear only skirts or dresses.” When she arrived at work for orientation in a skirt, she was told she could not wear it and would have to leave the store. According to the complaint, “The result of the foregoing practice has been to deprive Ashanti McShan of equal…
A California resident has filed a putative nationwide class action against a company that makes low-calorie frozen desserts, alleging that they do not, as advertised, contain just “150 calories per pint.” Michelle v. Arctic Zero, Inc., No. ___ (S.D. Cal., filed August 21, 2012). According to the complaint, Arctic Zero’s Vanilla Maple dessert “has 46% more calories than the 150 calories advertised on the product packaging and reflected on the nutritional label” and the company’s “Chocolate Peanut Butter has 68% more calories than the 150 calories advertised.” Claiming that she would not have purchased the products had she not been misled, the plaintiff alleges violations of California’s Unfair Competition Law (unlawful, unfair and fraudulent conduct), False Advertising Law and Consumers Legal Remedies Act, as well as unjust enrichment. She seeks preliminary and permanent injunctive relief; corrective disclosures; compensatory, consequential, statutory, exemplary, treble, and punitive damages; restitution; attorney’s fees; costs; and…
Contending that Monster Beverage Corp. either misled or failed to disclose that it was improperly advertising, marketing and promoting its Monster Energy® drinks and thus filed materially false and misleading financial statements, a putative securities class action has been filed against the company in a federal court in California. Rausch v. Monster Beverage Corp., No. 12-2058 (S.D. Cal., filed August 21, 2012). The filing follows news that an unnamed state attorney general subpoenaed company records in July 2012 seeking information about “the Company’s advertising, marketing, promotion, ingredients, usage and sale of its Monster Energy® brand of energy drinks.” Details about that action are included in Issue 450 of this Update. According to a news source, the company’s stock declined nearly 11 percent the day after Monster disclosed the investigation in a filing with the Securities and Exchange Commission. See Bloomberg, August 21, 2012.
Industry interests that lost their challenge to the listing of 4-MEI as a chemical known to California to cause cancer have abandoned the appeal they filed before the Third District Court of Appeals in February 2012. Cal. League of Food Processors v. OEHHA, No. C070406 (Cal. Ct. App., case complete August 15, 2012). Additional information about the challenge and trial court decision appears in Issues 420 and 429 of this Update. California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) added the chemical, commonly found in foods such as soy sauce, roasted coffee and the caramel coloring added to colas and beer, to the Proposition 65 (Prop. 65) list in January 2011.
A federal court in California has denied Chipotle Mexican Grill’s motion to dismiss putative class claims alleging that the company fraudulently represents that it uses only naturally raised meat in its menu items. Hernandez v. Chipotle Mexican Grill, Inc., No. 12-5543 (C.D. Cal., order entered August 23, 2012). According to the court, “Plaintiff need not show that he consumed non-naturally raised meat on one of his visits to Chipotle [because] the harm alleged [is that] Plaintiff purchased food at Chipotle, at a premium, based on Defendant’s representations that non-naturally raised meat was not used there.” The court also determined that the plaintiff adequately alleged a claim for fraudulent concealment and denied as premature that part of the defendant’s motion addressing the class allegations. The court did, however, order briefing on whether plaintiff’s counsel “would be adequate counsel to represent the class if a class were certified.” In this regard, the…
A divided Eighth Circuit Court of Appeals panel has reversed the dismissal of claims filed under the Federal Tort Claims Act (FTCA) by cattle producers alleging that a government employee negligently decimated their cattle herd by requiring that they plant a toxic seed mixture on pasture land enrolled in a conservation program; the court found that the negligence allegations were not barred by the discretionary-function exception to the FTCA’s waiver of sovereign immunity. Herden v. United States, No. 11-3530 (8th Cir., decided August 20, 2012). That exception bars liability for any claim based on the “exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” It applies where the action “involves an element of judgment or choice” and “the requisite judgment or choice is the type of government action Congress intended to…
