A recently published law review comment contends that food makers should not be concerned that the Food Safety Modernization Act (FSMA) will increase food borne illness-related litigation or make it easier for plaintiffs to succeed. David Benton, “The Impact of Mandatory Recalls on Negligence and Product Liability Litigation Under the Food Safety Modernization Act,” San Joaquin Agricultural Law Review (2012-2013). The author opines that the FSMA “will likely have little or no impact on negligence and product liability litigation,” but recommends that manufacturers be given limited immunity from civil actions when they comply with a Food and Drug Administration voluntary recall request. He also recommends that the law be amended to expressly preempt state regulation, which would bring the FSMA closer in line with the Food, Drug, and Cosmetic Act as to medical devices.
Category Archives Legal Literature
According to a recently published law review note, health care reimbursement suits modeled on Canada’s Cost Recovery Act and provincial litigation against cigarette manufacturers could be successfully maintained against the food industry for the treatment of obesity-related illnesses. Timothy Poodiack, “The Cost Recovery Act and Tobacco Litigation in Canada: A Model for Fast Food Litigation,” Brooklyn Journal of International Law (2013). The note includes background on the country’s universal health care system, a comparison of issues faced by plaintiffs in U.S. suits against “fast food” companies to issues arising in tobacco litigation, “including assumption of the risk and causation arguments,” and an examination of how the Cost Recovery Act can rebut those arguments, “making the Act an attractive model for potential future food litigants in Canada.”
A recent law review note outlines the history of parens patriae actions that allow states to sue to protect the health and welfare of their citizens, explores its use by state attorneys general to advance public health policy—particularly regarding the use of tobacco—and argues that it cannot be successfully wielded against food companies to address rising levels of obesity in the United States. John Hoke, “Parens Patriae: A Flawed Strategy for State-Initiated Obesity Litigation,” William and Mary Law Review, April 2013. The author opines that the “many different environmental, lifestyle, and uncontrollable genetic causes of obesity” pose a “formidable obstacle to establishing causation.” He also contends that “the sheer number of food companies and food producers further weakens the causal connection between the conduct of the food industry and obesity” and that “there is scant evidence that the food industry has deliberately tried to deceive consumers about the adverse health effects…
Arguing that bisphenol A (BPA) exposure is particularly harmful for young children, infants and fetuses “because they lack mature systems of bodily detoxification,” a public health law and policy fellow at the Arizona State University Sandra Day O’Connor College of Law has called for governmental entities at every level to prohibit the chemical in any product “meant to be consumed or used by a young child, infant, or pregnant woman.” Leila Barraza, “A New Approach for Regulating Bisphenol A for the Protection of the Public’s Health,” Journal of Law, Medicine & Ethics, Spring 2013. Part of a public health law conference symposium, this article discusses the mixed results of litigation against companies that use BPA in food and beverage contact materials and the failure of legislative initiatives that would restrict its use to take hold at the federal and state levels. The author calls on the Food and Drug Administration…
In a recently published article, psychology and law professors discuss research tending to show that the low-cost, highly refined, widely available sugars consumed by Americans may fit the developing definition of an addictive substance and consider whether such a finding would justify a range of legal and regulatory responses. Ashley Gearhardt, et al., “If Sugar Is Addictive … What Does It Mean for the Law?,” Journal of Law, Medicine & Ethics, Spring 2013. Noting that the understanding of addiction and public perceptions shifted when nicotine was declared an addictive substance despite its lack of mind-altering properties and relatively weak withdrawal symptoms, the authors report that the new addiction criteria include an inability to successfully cut down or abstain from a substance, “continued use despite negative consequences,” and diminished control over consumption. The authors compare the concentration of the coca leaf, with minimal addictive potential, into crack cocaine, which “‘hijacks’ the reward…
In an article titled “Snake Oil Salesmen or Purveyors of Knowledge: Off-Label Promotions and the Commercial Speech Doctrine,” Yale Law School Senior Research Scholar Constance Bagley and her co-authors critique the Second Circuit’s December 2012 determination in United States v. Caronia that Food and Drug Administration rules prohibiting prescription drug makers from promoting their products for off-label uses are unconstitutional under the First Amendment. According to the article, which will appear in a forthcoming issue of the Cornell Journal of Law and Public Policy, “this undue expansion of the Free Speech rights of commercial actors, if left unchecked” has the “potential to undermine the constitutionality of numerous areas of federal regulation,” including mandatory labels on food under the Nutritional Labeling and Education Act of 1990 and Food Allergen Labeling and Consumer Protection Act of 2004. The authors call for anchoring regulatory regimes in promoting the public good rather than individual…
Shook, Hardy & Bacon Global Product Liability attorneys Frank Cruz-Alvarez and Talia Zucker have co-authored an article about a recent federal court ruling that rejected The Hershey Company’s preemption-based challenge to a putative class action alleging that the nutrient content claims on its product labels violate the law. Additional information about Khasin v. The Hershey Co., No. 12-1862 (N.D. Cal. 11/9/12), appears in Issue 463 of this Update. Titled “The Food Court Stays Open: Preemption Defense in Food Labeling Class Action Rejected,” the article was published on December 12, 2012, in the Washington Legal Foundation’s blog “The Legal Pulse.” Noting that the ruling was disappointing for food manufacturers, the authors contend that “hope is not lost. Express preemption remains an essential argument for food company defendants in such litigation and though rejected in the Hershey case, not all facts lend themselves to such a gloomy conclusion.” As an example, they…
University of Arkansas School of Law LL.M. Candidate Lauren Handel has considered whether food-labeling provisions, such as those that would have been required under California’s Proposition 37 (Prop. 37), which voters defeated this week, are vulnerable to constitutional or preemption challenges. Had it been enacted, Prop. 37 would have required most food companies to label their products with a statement indicating that they contain genetically engineered (GE) ingredients and would have prohibited the use of the term “natural” on processed food products as inherently misleading to consumers. In her article titled “Labeling of Genetically Engineered Foods: A Constitutional Analysis of California’s Proposition 37,” Handel explores the First Amendment standards applied to commercial speech and concludes that the state would not have been able to justify a ban on “natural” claims, and that whether consumers’ “right to know” about GE ingredients trumps food companies’ commercial speech rights is debatable. She also concludes that…
University of Wyoming College of Law Professor Mary Dee Pridgen has updated a treatise titled Consumer Protection and the Law to reflect recent developments in Federal Trade Commission (FTC) enforcement of its 1995 policy statement on food advertising. As she notes, although FTC and the Food and Drug Administration (FDA) have overlapping authority to police food advertising claims, they have generally divided their duties with FDA concentrating on food labels and FTC addressing advertising claims. FTC indicates in the policy statement that it will give advertisers “a bit more leeway in advertising than the FDA allows on labels,” but if an advertising claim complies with FDA labeling regulations, it will “generally be safe from FTC scrutiny.” Pridgen discusses FTC enforcement actions since the mid-1990s, involving Stouffer Foods, Häagen-Dazs, the Isaly Klondike Co., Mrs. Fields Cookies, Dannon, Gerber, and Kellogg, as well as companies that sell dietary supplements. She concludes, “In…
Shook, Hardy & Bacon Public Policy Partner Phil Goldberg has co-authored, with the current chair of the New Jersey State Bar Association’s Animal Law Committee, a commentary titled “Barking Up the Wrong Tree,” published in the September 17, 2012, issue of the New Jersey Law Journal. The commentary discusses a New Jersey Supreme Court ruling denying emotional distress damages to a woman whose dog was attacked by a neighbor’s dog and died. Noting that more and more pet owners are seeking these types of damages when their pets are injured or killed, the authors contend that limiting pet owners to economic damages will best protect their pets in the long run. According to the authors, “[p]et economics is simple. At litigation-inflated prices, many owners will no longer be able to afford services and products their pets need. The quality of pets’ lives will be lowered, and in some cases, owners…
