The Center for Food Safety (CFS) has filed a lawsuit against the U.S. Department of Agriculture’s (USDA’s) Animal and Plant Health Inspection Service (APHIS) alleging that the agency has routinely failed to respond to Freedom of Information Act (FOIA) requests for records related to genetically engineered (GE) crops. Ctr. for Food Safety v. Animal & Plant Health Inspection Serv., No. 15-1377 (D.D.C., filed August 25, 2015). CFS asserts that APHIS has unlawfully delayed its responses to at least 29 FOIA requests or appeals related to its decision to withdraw proposed regulations that would update existing management of GE crops. “APHIS has a track record of irresponsible and inadequate regulation of GE crops,” CFS Staff Attorney Cristina Stella said in an August 25, 2015, press release. “In the absence of thorough government oversight, public access to information about these crops becomes all the more critical. This lawsuit is necessary to stop…
Category Archives 4th Circuit
A lawsuit dismissed in 2013 alleging that the National Pork Board purchased the tagline “The Other White Meat” from the National Pork Producers Council for fraudulent reasons has been revived by the Court of Appeals for the D.C. Circuit. Humane Soc’y of the U.S. v. Vilsack, No. 13-5293 (D.C. Cir., order entered August 14, 2015). The lawsuit was initially dismissed because the plaintiffs, including the Humane Society of the United States (HSUS), failed to prove that they had standing to sue. Details of the dismissal appear in Issue 499 of this Update. HSUS alleged that the board, a quasi-governmental entity, pays $3 million annually to license the trademarked phrase from the council, an industry trade group, not because the board intended to market pork with the slogan—which has not been in use since 2011—but rather because it sought to support the council’s lobbying efforts. Upon a de novo review, the appeals…
A California federal court has denied Gerber Products Co.’s attempt to dismiss a false advertising lawsuit about the company’s Good Start® Gentle based on the reasoning in a June 2015 Fourth Circuit decision that significantly changed the law. Zakaria v. Gerber Prods. Co., No. 15-0200 (C.D. Cal., order entered July 14, 2015). The June decision found that, “so long as there is a ‘reasonable difference of scientific opinion’ as to the merits of a manufacturer’s health claim, the alleged actual falsehood of that health claim cannot be the basis for a cause of action under several consumer protection laws.” In re GNC Corp., No. 14-1724 (4th Cir., order entered June 19, 2015). After the court denied its motion to dismiss on June 18, Gerber filed for reconsideration, arguing that In re GNC “has changed the law of false advertising.” The court, noting that the Fourth Circuit decision was not binding…
The Fourth Circuit Court of Appeals has affirmed a lower court’s dismissal of a case alleging that Kraft spammed an Internet service provider (ISP) with advertisements for its Gevalia® coffee products. Beyond Systems, Inc. v. Kraft Foods, Inc., No. 13-2137 (4th Cir., order entered February 4, 2015). Beyond Systems sued Kraft alleging violations of Maryland’s and California’s anti-spam statutes, but the circuit court agreed with the district court’s determination that Beyond Systems “invited its own purported injury and thus could not recover for it.” Beyond Systems is a Maryland ISP with servers housed at the residence of the owner’s parents, and the owner’s brother owns Hypertouch, Inc., a similar “nominal” ISP with servers in California. Both ISPs host websites with hidden email addresses that only “spam crawlers” can find, and Beyond Systems uses the email addresses as “spam traps”; the court notes that “spam-trap-based litigation has accounted for 90% of…
Finding a lack of standing, a D.C. federal court has dismissed Food & Water Watch’s lawsuit alleging that the U.S. Department of Agriculture’s (USDA’s) New Poultry Inspection System (NPIS) is inconsistent with the Poultry Products Inspection Act (PPIA), which requires USDA to ensure that poultry products are wholesome, unadulterated and properly marked, labeled and packaged. Food & Water Watch v. Vilsack, No. 14-1547 (D.D.C., order entered February 9, 2015). The NPIS reduces the number of USDA inspectors at the slaughter line of poultry production facilities, “freeing up [USDA Food Safety and Inspection Service] resources to conduct offline inspection activities that are more important for food safety, such as verifying compliance with sanitation and [other] requirements, or conducting Food Safety Assessments.” Food & Water Watch challenged the NPIS as consumers of poultry, arguing that the USDA inspection label indicated to them that a federal employee had inspected the poultry and that…
Challengers to the U.S. Department of Agriculture’s country-of-origin labeling (COOL) rules requiring meat products to indicate where the animals were born, raised and slaughtered reportedly will not continue to pursue their claims, according to a stipulation of dismissal. Am. Meat Inst. v. USDA, No. 13-1033 (D.C., stipulation filed February 9, 2015). The meat and poultry groups lost their First Amendment challenge to the mandatory labeling rules in the D.C. Circuit Court and were later denied a rehearing. The stipulation comes after a World Trade Organization (WTO) ruling against the United States in favor of Canada and Mexico, which argue that the rules discriminated against their livestock producers. “While we remain disappointed with the court’s ruling on country of origin labeling (COOL), we agree with the World Trade Organization’s assessment that the U.S. rule is out of compliance with its trade obligations to Canada and Mexico,” North American Meat Institute CEO…
The D.C. Circuit Court of Appeals has affirmed a Federal Trade Commission (FTC) order that found POM Wonderful’s advertising to be misleading for claiming that its products treat or reduce the risk of several medical conditions, including prostate cancer and heart disease. POM Wonderful, LLC v. FTC, No. 13-1060 (D.C. Cir., order entered January 30, 2015). In 2013, FTC ordered POM to stop making misleading health claims about its product, and POM challenged the ruling. POM argued that its ads were protected by the First Amendment, but the court dismissed this argument, finding that deceptive and misleading ads have no First Amendment protection. The juice company also asserted that it had clinical studies to support its health claims. The circuit court affirmed FTC’s finding that POM had cherry-picked its results when presenting them to the public, which invalidated them as support for the claims. The court agreed with POM, however, that…
Several consumer and environmental groups, including the Center for Food Safety and Center for Environmental Health, have filed a lawsuit against the U.S. Environmental Protection Agency (EPA) seeking declaratory and injunctive relief for EPA’s alleged failure to respond to the groups’ 2008 petition calling for regulation of consumer products containing nano-sized versions of silver. Ctr. for Food Safety v. EPA, No. 14-2131 (D.D.C., filed December 16, 2014). According to the complaint, the 2008 petition requested that EPA classify nano-silver products as pesticides and provided EPA with a legal, policy and scientific blueprint for necessary action. EPA opened a comment period on the matter later that year but allegedly failed to take any further action. The petition also included an index of products that contained nano-silver, including food storage containers, food/produce cleaners, cutlery, cutting boards, and ingestible “health” drink supplements. The groups assert that nanomaterials “create unique human health and environmental risks,…
A federal court has granted summary judgment for the U.S. Food and Drug Administration (FDA) in a lawsuit brought by the Center for Science in the Public Interest (CSPI) and Mercury Policy Project (MPP) alleging that the agency has egregiously delayed a response to the organizations’ 2011 petition urging FDA to require the labeling of mercury levels in seafood. CSPI v. FDA, No. 14-0375 (D.D.C., order entered November 21, 2014). Additional information about the complaint appears in Issue 517 of this Update. Assessing precedent, the court noted six considerations relevant in evaluating agency delay and found that three were in question here. CSPI and MPP argued that FDA’s delay was unreasonable because statutorily, the agency has six months to approve, deny or tentatively respond to citizen petitions; while FDA technically complied with this regulation, they argued, the deadline “provides a framework within which to gauge FDA’s delay in issuing a…
The D.C. Circuit Court of Appeals has denied the requests of meat-producer interests to rehear arguments in a case challenging the U.S. Department of Agriculture’s (USDA’s) country-of-origin labeling (COOL) rules as a violation of First Amendment rights. Am. Meat Inst. v. USDA, No. 13-5281 (D.C. Cir., order entered October 31, 2014). Under the regulations, amended in May 2013, retailers of “muscle cuts” are required to list on product labels the countries of origin and production as to each step of production—born, raised or slaughtered. Additional details about the en banc ruling upholding the regulations appear in Issue 532 of this Update. USDA amended the rules to address an adverse World Trade Organization (WTO) determination that they discriminated against Canadian and Mexican livestock producers. The effort was unsuccessful, as WTO again ruled in favor of Canada and Mexico. Information about that decision appears in Issue 542 of this Update. Issue 544
