Under a settlement agreement approved by a New Jersey federal court, Dakota Growers Pasta Co. will pay $7.9 million to resolve claims that it deceptively markets, advertises and sells Dreamfields Pasta as having a low glycemic index and only five grams of digestible carbohydrates per serving, making it a “healthy alternative to traditional pasta.” Mirakay v. Dakota Growers Pasta Co., Inc., No. 13-4429 (D.N.J., order entered October 20, 2014). The agreement stipulates that for one year, Dakota will remove from its packaging (i) the claims of a low glycemic index and low carbohydrates and (ii) the claim that the product can reduce spikes in blood glucose levels. Dakota will also pay $2.9 million in attorney’s fees and $5 million into a settlement fund for distribution to class members, who will receive $1.99 for every box of pasta ordered online without limit as well as for each box purchased in a store,…
Category Archives 4th Circuit
A federal court in Maryland has allowed the personal representative of the estate of a man who died in 2011 during a nationwide Listeria outbreak linked to a Colorado cantaloupe farm to sue the company responsible for auditing the cantaloupe producer’s processing facilities, finding that it owed him a duty of care. Wells Lloyd v. Frontera Produce, Ltd., No. 13-2232 (D. Md., order entered September 24, 2014). An Oklahoma court refused to allow claims against the auditor in December 2013, finding that the plaintiff, who was sickened during the Listeria outbreak, could not show that the auditor owed him a duty under Oklahoma law. Details about that ruling appear in Issue 509 of this Update. In contrast, the Maryland court found that the food safety auditor owed a duty to the decedent, because its allegedly negligent audit of the facility—finding that it complied with applicable standards of care for food processing—met…
Nonprofit consumer advocacy organization Food & Water Watch, Inc. and two of its members have filed an action against the U.S. Department of Agriculture (USDA) and its Food Safety and Inspection Service seeking to enjoin their new National Poultry Inspection System (NPIS) rules. Food & Water Watch, Inc. v. Vilsack, No. 14-1547 (D.D.C., filed September 11, 2014). Details about the rules, which take effect October 20, 2014, appear in Issue 532 of this Update. The plaintiffs allege that the rules violate the Poultry Products Inspection Act (PPIA) and Administrative Procedure Act (APA). They interpret the PPIA as requiring “that federal inspectors critically appraise all chicken and turkey carcasses and viscera,” and set forth how increased line speeds and rules giving poultry employees, without training or certification, the authority to inspect and remove adulterated birds or parts from processing lines before inspectors see them violate this requirement. Without actual inspection of every bird,…
The Equal Employment Opportunity Commission (EEOC) has filed a lawsuit in North Carolina federal court against Food Lion alleging that the grocery retailer fired an employee because he was unavailable to work on Thursday evenings and Sundays, when he attended Jehovah’s Witness services as a minister and elder. EEOC v. Food Lion LLC, No. 14-708 (U.S. Dist. Ct., M.D.N.C., filed August 20, 2014). According to the complaint, a Food Lion manager hired the employee with knowledge and acceptance of his scheduling restrictions, but after the employee was assigned to a different store location, a second manager insisted on scheduling him on days that he attended religious services. When the employee chose to attend services over working his scheduled shift, he was fired. EEOC alleged that Food Lion’s employment practices violate Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, and…
A federal court in New Jersey has denied the motion to dismiss filed by MonaVie, Inc. in consumer-fraud litigation involving its juice products, finding that the first amended putative class-action complaint was sufficiently pleaded. Pontrelli v. MonaVie, Inc., No. 13-4649 (D.N.J., decided August 19, 2014). Attached to the complaint was a MonaVie brochure that included a number of claims about the curative health benefits of the açai berry, as well as purported customer testimonials. The plaintiff claimed that she relied on such representations, did not receive the advertised benefits and would not have purchased the products if she had known that the representations were false. The complaint also alleged that consumers are willing to pay an inflated price for the products—$40 for a 25-ounce bottle—based on the advertised health benefits. The plaintiff also alleged that the company knows its claims are false and that the juice products will not cure any…
The D.C. Circuit Court of Appeals has vacated a panel’s March 28, 2014, denial of the motion for preliminary judgment filed by meat producer interests in litigation challenging U.S. Department of Agriculture (USDA) regulations requiring retailers of “muscle cuts” of meat to list the countries of origin and production (country-of-origin labeling, or COOL) as to each step of production—born, raised or slaughtered. Am. Meat Inst. v. USDA, No. 13-5281 (D.C. Cir., order entered April 4, 2014). Additional information about the March 28 decision appears in Issue 518 of this Update. A court majority voted to rehear the case before the full court on May 19 and ordered the parties to brief a supplemental issue: “Whether, under the First Amendment, judicial review of mandatory disclosure of ‘purely factual and uncontroversial’ commercial information, compelled for reasons other than preventing deception, can properly proceed under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651…
In a 9-2 en banc decision, the District of Columbia Circuit has affirmed an earlier panel decision that the U.S. Department of Agriculture (USDA) can require meat producers to include country-of-origin labeling (COOL) on their packaging. Am. Meat. Inst. v. USDA, No. 13-5281 (D.C. Cir., order entered July 29, 2014). The First Amendment allows for such required disclosures because the government’s interest is sufficient, the court found. Additional information on the American Meat Institute’s constitutional challenge and the D.C. panel’s decision appears in Issues 518 and 520 of this Update. In its discussion, the court interpreted the U.S. Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) to reach beyond mandated commercial labeling necessary to correct deception to include the “factual and uncontroversial disclosures required to serve other government interests” at issue in the COOL context. The language in Zauderer “sweeps far more broadly than…
A federal court in the District of Columbia has denied the request of the Black Farmers & Agriculturalists Association, Inc. to intervene in lawsuits brought by female and Hispanic farmers against the U.S. Department of Agriculture (USDA) alleging gender and race bias in the administration of farm loan and disaster benefit programs. Love v. Vilsack, No. 00-2502 (D.D.C., decided June 13, 2014). Additional information about the gender discrimination claims appears in Issue 374 of this Update. The association was not a member of the settlement class established to resolve the claims of African-American farmers who failed to file claims for administrative adjudication before the deadline expired in Pigford v. Glickman (Pigford I). Those missing the deadline saw their claims revived under the 2008 Farm Bill and consolidated in litigation collectively known as Pigford II. Details about that litigation appear in Issue 395 of this Update. The association sought (i) a declaration…
The Center for Science in the Public Interest (CSPI) has filed a complaint against the U.S. Department of Agriculture and Food Safety and Inspection Service, seeking a declaration that the agencies have unreasonably delayed taking action on its May 2011 petition requesting that certain strains of antibiotic-resistant (ABR) Salmonella in ground meat and poultry be declared adulterants. CSPI v. Vilsack, No. 14-895 (D.D.C., filed May 28, 2014). Details about CSPI’s petition appear in Issue 396 of this Update. According to the nutrition and health advocacy organization, if these pathogens are declared adulterants, affected meat and poultry products would be barred from entering commerce, and the action “would also confirm the agency’s authority to request without evidence of illness that a company recall products containing ABR Salmonella, or—in the absence of a company’s voluntary compliance—to detain and seize those products.” The complaint refers to a number of Salmonella outbreaks, some involving…
The D.C. Circuit Court of Appeals has affirmed a lower court ruling denying the motion for preliminary injunction filed by meat producer interests in litigation challenging U.S. Department of Agriculture (USDA) regulations requiring retailers of “muscle cuts” of meat to list the countries of origin and production (country-of-origin labeling or COOL) as to each step of production—born, raised or slaughtered. Am. Meat Inst. v. USDA, No. 13-5281 (D.C. Cir., decided March 28, 2014). The regulations at issue were adopted in 2013 in response to a World Trade Organization (WTO) ruling finding their predecessor to violate the WTO Agreement on Technical Barriers to Trade. They “increased the required level of precision” to address each production step and also “eliminated the special allowance for commingled meat.” The plaintiffs argued that the amended rules ban commingling and thus alter “production practices over which the COOL statute gives the Secretary no authority,” and that the…
