A federal court has refused to dismiss putative class claims filed under California’s consumer protection law against a company that advertises its pasta sauce, which contains high-fructose corn syrup (HFCS), as “all natural.” Lockwood v. ConAgra Foods, Inc., No. 08-04151 (N.D. Cal., decided February 3, 2009). The defendant sought to dismiss the claims on preemption grounds and called for the class allegations to be stricken “because plaintiffs cannot prove reliance on a class-wide basis.” According to the court, the federal Nutrition Labeling and Education Act (NLEA) does not apply to the “complaint as currently pled. Plaintiffs do not allege that defendant’s pasta sauce contains artificial flavoring, coloring or a chemical preservative; rather, they allege that the ‘high fructose corn syrup’ is not produced by a natural process and therefore the pasta sauce is not ‘all natural.’” The court also found that the claims were not impliedly preempted because “Congress has explicitly stated…
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Food litigator William Marler has reportedly filed an amended complaint on behalf of a Vermont couple whose son was allegedly sickened and hospitalized following ingestion of a product containing Salmonella-tainted peanut butter. Meunier v. Peanut Corp. of Am., No. 09-12 (M.D. Ga., first amended complaint filed January 28, 2009). The plaintiffs are now seeking punitive damages for “willful concealment of known defects.” The amendment follows the release of a Food and Drug Administration (FDA) inspection report showing that the Peanut Corp. of America (PCA) shipped products that tested positive for Salmonella after the company had the products retested and received negative test results. Marler was quoted as saying, “In 15 years of litigating food cases, this is one of the worst examples of corporate irresponsibility I have ever seen. Not only does the plant appear to have atrocious practices, but the product that seems to have repeatedly tested positive for Salmonella was shipped…
Quebec courts have reportedly fined a snack cake manufacturer CAN$44,000 for violating the province’s Consumer Protection Act, which forbids marketing to children younger than age 13. Saputo Inc. pleaded guilty to 22 charges resulting from a complaint filed by anti-obesity advocate Coalition Poids and the Union des Consommateurs. The groups claimed that Saputo used a cartoon gorilla to promote its product in day care centers, hailing the decision as “a victory for children.” “The World Health Organization has identified junk-food advertising as one of the top five causes of the current obesity epidemic,” Coalition Poids Director Suzie Pellerin was quoted as saying. Meanwhile, Quebec’s consumer protection agency has apparently verified similar complaints pending against Burger King and General Mills. Media sources have noted that the successful prosecution of Saputo could signal a shift in how Quebec enforces its unique marketing code. The last court case testing the Consumer Protection Act occurred…
A number of bills have already been introduced in the new Congress to overhaul the food safety system in the United States. Driven by concerns that current laws are not providing adequate protection for consumers, House members and Senators have proposed the following measures: H.R. 185 – Introduced January 6, 2009, by Representative José Serrano (D-N.Y.), this bill would require that consumers be notified if food products are made with crops, livestock or poultry raised on land to which sewage sludge was applied. Referred to the House Committee on Energy and Commerce and the Committee on Agriculture. H.R. 759 – Introduced January 18, 2009, by Representative John Dingell (D-Mich.), this bill would require fees for facility registration, verification that food plants are operating under an HACCP plan, HHS guidance or regulations to establish science-based standards for conducting hazard analysis and implementing preventive controls, HHS biannual review of data to identify…
President Barack Obama (D) has issued an executive order (E.O. 13497) revoking executive orders issued by his predecessor that, among other matters, gave the White House control over federal agency guidance documents and expanded the regulatory oversight authority of policy officers appointed by the president. Additional information about one of the revoked Bush-era executive orders appears in issues 199 and 213 of this Update. The agency watchdog group OMB Watch issued a statement applauding the president’s action, saying that his “decision to revoke E.O. 13422 so early in his administration sends a clear signal that he hopes to limit the role of politics in the regulatory process.” E.O. 13422 required agencies to identify the specific market failure that justified agency rulemaking action and gave regulatory policy officers the right to initiate or stop rulemakings at any time without public input. OMB Watch characterized the Bush-era order as an attempt “to paralyze…
U.S. and Danish researchers have published an article that discusses a study conducted on a subset of the Danish National Birth Cohort of some 100,000 children and their mothers to explore whether bloodstream levels of perfluorooctane sulfonate (PFOS) and perfluorooctanoate (PFOA), chemicals used in food packaging, may affect fertility. Chunyuan Fei, et al., “Maternal Levels of Perfluorinated Chemicals and Subfecundity,” Human Reproduction, January 28, 2009. Noting that these chemicals are also used in many other consumer products, “are persistent in the environment and have been detected in wildlife and humans around the world,” the researchers found that higher maternal PFOA and PFOS levels were associated with a longer time to pregnancy. They conclude that exposure to these chemicals “may explain some of the fertility differences seen among different populations in developed countries.”
A recent study has claimed that the food packaging chemical bisphenol A (BPA) remains in the body longer than expected, raising questions about potential non-food sources. Richard Stahlhut, et al., “Bisphenol A Data in NHANES Suggest Longer Than Expected Half-Life, Substantial Non-Food Exposure, or Both,” Environmental Health Perspectives, January 28, 2009. University of Rochester Medical Center researchers examined BPA levels in the urine of 1,469 adult participants in the National Health and Nutrition Examination Survey (NHANES) sponsored by the Centers for Disease Control and Prevention. The study authors found that instead of quickly metabolizing BPA, people who fasted for 24 hours still eliminated the chemical in their urine, leading to speculation that BPA might be stored in fat tissue or come from other sources such as tap water or household dust. Previous research has allegedly linked higher BPA concentrations to ailments ranging from heart disease, type 2 diabetes and liver…
A recent study published in Environmental Health has allegedly identified mercury in nearly 50 percent of sampled commercial high fructose corn syrup (HFCS). Renee Dufault, et al., “Mercury From Chlor-Alkali Plants: Measured Concentrations in Food Product Sugar,” Environmental Health, January 2009. The study authors apparently detected mercury in nine of 20 HFCS samples from 2005, concluding that “it may be necessary to account for this source of mercury in the diet of children and sensitive populations.” In addition, the Institute for Agriculture and Trade Policy (IATP) has released a report that claims to have found mercury in one-third of 55 brand-name food and beverage products listing HFCS as the first or second ingredient. Both publications were co-authored by the director of IATP’s Food and Health Program, David Wallinga, who reportedly linked the contamination to mercury-grade caustic soda used to separate corn starch from corn kernels during HFCS production. He speculated that…
Federal agents reportedly raided a major organic fertilizer producer in Bakersfield, California, over concerns that it was using a synthetic nitrogen, which is banned from organic farms. Port Organic Products Ltd. is believed to produce up to half the liquid fertilizer used on the state’s organic farms. The raid follows by about a month press reports that state regulators quietly pulled the product of another fertilizer producer, with about a third of California’s market share, from the organic market in November 2007 for similar problems. Synthetic nitrogen is apparently cheaper than approved nitrogen sources such as ground-up fish and chicken feathers, and it is hard to detect. No charges have been filed against Port Organic, and federal officials were reportedly not commenting on their investigation, but a county environmental health services department evidently imposed fines on the company for improperly storing thousands of gallons of aqua ammonia, a common synthetic nitrogen…
Food litigator William Marler discusses the 2006 spinach E. coli outbreak in this article, which provides an overview of the issues that plaintiffs’ lawyers should consider when they represent clients allegedly sickened by contaminated fresh produce. Among the issues flagged are (i) which entities are liable under a strict products liability scheme; (ii) what effect insurance and indemnity agreements will have on “the all-important questions of who is going to pay”; and (iii) whether the industry’s or individual corporation’s knowledge of the risk gives rise to the availability of punitive damages. The article concludes with a brief consideration of how the industry is regulated and why foodborne pathogens continue to sicken consumers. Marler argues that “the most expedient step in preventing another deadly foodborne illness outbreak like the 2006 Dole spinach outbreak is to push for greater corporate responsibility regarding the oversight of food producers. The lives of American consumers depend…
