Federal courts in Ohio and Kentucky have remanded putative class claims alleging that Applebee’s International, Inc., DineEquity, Inc. and Weight Watchers International, Inc. misrepresented the calorie and nutritional information on the Weight Watchers menu items available in Applebee’s restaurants. Curry v. Applebee’s Int’l, Inc., No. 09-505 (S.D. Ohio, filed November 17, 2009); Kramer v. Applebee’s Int’l, Inc., No. 09-131 (E.D. Ky., filed November 17, 2009). Each plaintiff filed her complaint in state court and sought to certify a class of statewide residents. In July 2009, more than ten months after the complaints had been filed and after some discovery and an unsuccessful mediation had occurred, the defendants removed the cases to their respective federal courts. Writing for both courts, the Ohio district court determined that the defendants had filed for removal too late under the Class Action Fairness Act, which requires that a notice of removal be filed within 30 days…
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California’s Office of Environmental Health Hazard Assessment (OEHHA) is requesting written comments on two proposals. One would establish a “no significant risk level” for fumonisin B1, a chemical present in many corn-based food products, at a value that is apparently significantly lower than safe levels set by other regulators and could expose many companies to the risk of litigation under Proposition 65 (Prop. 65). Comments are due by November 23, 2009. According to an industry spokesperson, the proposed level of 1.5 micrograms per day is “very, very low,” particularly when compared with Food and Drug Administration standards and the standards of international regulatory bodies. A snack food company requested in 2008 that OEHHA establish a “safe use determination” for fumonisin B1, which would mean that products containing this naturally occurring chemical do not pose a health risk. The request is still pending. See Inside Cal/EPA, November 13, 2009. Meanwhile, OEHHA…
The Canadian House of Commons’ Standing Committee on Health (HESA) recently heard testimony from Nestlé S.A. and Kellogg Co. representatives about dietary salt reduction. The representatives reportedly backed recent efforts to reduce salt levels in popular products, noting that breakfast cereals account for only 3 percent of the salt in the Canadian diets. Nestlé Director of Corporate Affairs Catherine O’Brien also stated that the company currently complies with the Heart and Stroke Foundation’s Health Check™ program, which has worked to remove 500,000 kilograms of salt from the food supply in the past 4 years. “We must balance the push of science with the pull of the market—consumers will simply not compromise on taste, therefore it must be a priority alongside improved health,” O’Brien was quoted as saying. According to media sources, some HESA members have expressed frustration with forthcoming federal salt reduction targets because they are not mandatory. “I frankly don’t…
The National Industrial Chemicals Notification and Assessment Scheme of Australia’s Department of Health and Ageing has released for public comment a plan to (i) eliminate a regulatory review exemption for the production of small quantities of new nanoscale materials; and (ii) establish a voluntary reporting system for manufacturers producing nanoscale chemicals. Comments must be provided no later than December 23, 2009. U.S. observers have reportedly indicated that the Australian proposal is presented in a manner that may make it a model for other countries also grappling with safety issues involving nanomaterials. See BNA Daily Environment Report, November 17, 2009. Meanwhile, new reports on purported health and environmental effects of nanoscale materials continue to be released. The November 16 issue of Cancer Research contains a study suggesting that titanium dioxide nanoparticles, found in toothpaste, food colorants, cosmetics, sunscreens, paints, and vitamins, caused genetic damage in mice. According to senior author Robert Schiestl,…
An end to the world’s longest-running trade dispute is reportedly drawing near. The European Union (EU), which purportedly started the “banana wars” by imposing higher duties on tropical fruits from Latin America in the early 1990s to favor former British and French colonies in Africa, the Caribbean and Pacific regions, is apparently poised to enter an agreement that would reduce its banana tariffs over the next seven years thus putting growers around the world on an equal footing. The United States is also apparently expected to adopt the same terms, so shoppers could soon be facing lower prices for tropical fruits and for dozens of other tropical products if the proposed settlement provides a boost to the upcoming Doha round of world trade negotiations. See The New York Times, November 17, 2009.
The U.S. Department of Agriculture’s Agriculture Marketing Service (AMS) has proposed amending regulations that govern the U.S. Standards for Condition of Food Containers. According to AMS, these revisions are necessary to “reflect current industry practices” and include “simplifying sampling plans, updating the acceptable quality levels to incorporate new defects, and updating current defects to include new packaging technologies and interior can defects.” These amendments “could potentially affect more than 26,000 food manufacturing establishments that may request to have their product containers inspected under the provisions of the U.S. Standards for Condition of Food Containers.” The agency will accept comments on the proposal until January 19, 2010. See Federal Register and AMS Press Release, November 19, 2009.
The Food and Drug Administration (FDA) has extended the period for comments and scientific data and information on acrylamide in food as it considers industry guidance on this issue. In response to a request for a 60-day extension, FDA will accept written comments and scientific data until January 25, 2010. In its original request for comments and data published in the August 26, 2009, Federal Register, FDA described acrylamide as “a chemical that can form in some foods during certain types of high-temperature cooking,” and sought information from manufacturers on how to measure and reduce acrylamide levels in food. The agency asked responders to provide detailed feedback about: (i) techniques for acrylamide mitigation; (ii) best monitoring practices; (iii) standard practices for the delivery, storage, temperature control, reconditioning, and screening of potatoes; (iv) changes to food packaging instructions and other measures that can reduce acrylamide levels during a product’s final preparation by…
The Food and Drug Administration’s (FDA) Center for Food Safety and Applied Nutrition (CFSAN) has released a report that recommends guidelines for establishing a comprehensive food-tracing system along the entire supply chain to reduce foodborne illness. CSFAN commissioned the Institute of Food Technologists (IFT) report in 2008, and will apparently consider its findings when determining how government and industry can more quickly identify products associated with disease and remove risky products from the market. IFT, a nonprofit scientific society focused on the science of food, reportedly examined the tracing methods of 58 diverse food companies to prepare the study, which recommends (i) creating a standard list of key data to be collected at each stage of the food chain, from farm to retailer or restaurant; (ii) developing more thorough, standardized recordkeeping methods; (iii) keeping records in electronic format; (iv) requiring a third-party audit of a company’s tracking system; and (iv)…
The Food and Drug Administration (FDA) has announced its intention to delay a 2011 ban on raw oysters harvested from the Gulf of Mexico during warm weather months. FDA heard from “Gulf Coast oyster harvesters, state officials, and elected representatives from across the region about the feasibility of implementing post-harvest processing or other equivalent controls” designed to reduce illnesses from bacteria like Vibrio vulnificus. “It is clear to FDA from our discussions to date that there is a need to further examine both the process and timing for large and small oyster harvesters to gain access to processing facilities or equivalent controls in order to address this important public health goal,” stated the agency, which will conduct an independent study to assess how bacteria controls can be “feasibly implemented in the fastest, safest and most economical way.” FDA specifically noted that it will (i) continue to collaborate with the Interstate…
Responding to a request from a coalition of state attorneys general, the Food and Drug Administration (FDA) has called on the makers of alcoholic energy drinks to provide information and data showing their use of caffeine in alcoholic beverages is permissible under the law. The letter, sent to nearly 30 companies, explains what the law requires in terms of food additives: the additives must meet generally recognized as safe (GRAS) standards or be given pre-market approval by the agency. According to FDA, caffeine is GRAS only when used in cola-type beverages. The letters were issued on November 13, 2009, and the companies were given 30 days to provide the requested information. In late September, the co-chairs of the National Association of Attorneys General Youth Access to Alcohol Committee called for the agency to pull the products from the market, contending that “the combination of caffeine and alcohol in AEDs [alcoholic…
