A California Superior Court has reportedly dismissed a lawsuit filed by nearly 3,000 Philippine banana plantation workers who claimed that exposure to the pesticide 1,2-Dibromo-3-chloropropane (DBCP) more than 30 years ago caused physical and mental injury including sterility, testicular atrophy, miscarriages, and cancer. Macasa v. Dole Food Co., No. BC467134 (Cal Super. Ct., decided August 8, 2012). More details about the litigation appear in Issue 405 of this Update. According to a company spokesperson, the claims were fraudulent and should not have been brought because no reliable scientific evidence links DBCP agricultural exposures to the injuries alleged. The company reported that an identical lawsuit filed 13 years ago in the Philippines was also dismissed. The U.S. Environmental Protection Agency has apparently prohibited the pesticide’s use in the United States, classifying it as a probable human carcinogen. See Ventura County Star, August 9, 2012.
Category Archives U.S. Circuit Courts
A Texas appeals court has dismissed product liability and negligence claims filed by a woman injured when she was struck twice in the face with a longneck beer bottle during a birthday celebration at a bar known for its violence. Gann v. Anheuser-Busch, Inc., No. 08-00017 (Tex. App., 8th Dist., July 25, 2012). Affirming the trial court’s grant of the defendants’ motion for summary judgment, the appeals court determined that the plaintiff “failed to produce more than a scintilla of evidence that the longneck bottle was defectively designed so as to render it unreasonably dangerous and failed to establish that Appellees owned her a legal duty to protect her from the criminal acts of a third person.” Specifically, the court found insufficient evidence that the risk of injury from the bottle’s design outweighs its utility despite the plaintiff’s assertions that “beer bottles are used commonly in assaults in the local…
A federal magistrate judge in New York has determined that the Food and Drug Administration (FDA) must begin proceedings to withdraw its approval of the use of certain antibiotics in livestock for non-therapeutic purposes on the agency’s timeline, thus denying FDA’s request for a stay while the matter is pending on appeal before the Second Circuit. NRDC v. FDA, No. 11-3562 (S.D.N.Y., decided August 8, 2012). In June, the court determined that FDA arbitrarily denied petitions filed by advocacy organizations in 1999 and 2005 requesting the initiation of these proceedings. More information about the case appears in Issue 442 of this Update. The magistrate first ruled on the Natural Resource Defense Council’s (NRDC’s) motion to strike a document from the record; it was an Animal Health Institute statement “expressing general support for the FDA’s plans to reduce the non-therapeutic use of medically-important antibiotics in animal feed through a voluntary guidance…
The Ninth Circuit Court of Appeals has determined that the “filed rate doctrine” does not bar the state law-based claims of dairy farmers alleging that milk marketing cooperatives (handlers) provided erroneous reports to the federal government which relied on them to set a minimum price structure for raw milk sales; as a result, the farmers purportedly lost millions of dollars. Carlin v. DairyAmerica, Inc., No. 10-16448 (9th Cir., decided August 7, 2012). Each of the four named plaintiffs in this consolidated proceeding filed claims on behalf of a nationwide class alleging (i) negligent misrepresentation, negligent interference with prospective economic advantage and unjust enrichment, all under California common law; and (ii) violation of California’s Unfair Business Practices Law. The filed rate doctrine “‘is a judicial creation that arises from decisions interpreting federal statutes that give federal agencies exclusive jurisdiction to set rates for specified utilities, originally through rate-setting procedures involving the…
The U.S. Patent and Trademark Office (USPTO) has issued a final rule that incorporates certain changes that took effect in January 2012 under the Nice Agreement Concerning the Classification of Goods and Services for the Purpose of the Registration of Marks, to which the United States is a signatory. Among other matters, (i) Class 5 is changed from “dietetic substances adapted for medical use” to “dietary food and substances adapted for medical use”; and (ii) Class 32 is change from “non-alcoholic drinks; fruit drinks” to “non-alcoholic beverages; fruit beverages.” USPTO’s classification of goods and services under the Trademark Act is codified at 37 CFR part 6. See Federal Register, August 9, 2012.
A California resident has filed a putative class action against Smart Balance, Inc., alleging that the 100 mg of plant sterols in a single serving of the company’s spreadable butter products do not, as advertised, block the absorption of dietary cholesterol. Aguilar v. Smart Balance, Inc., No. 12-1862 (S.D. Cal., filed July 27, 2012). The named plaintiff seeks to represent either a multistate class of consumers or a California class. According to the complaint, studies show that, to reduce cholesterol, “a minimum of 0.8 grams, and preferably 2 grams, of plant sterols must be consumed daily.” Given the purportedly modest amount of sterols in the defendants’ products, the plaintiff claims that half a container would need to be consumed in one day “to realize even the minimum amount of cholesterol reduction benefit.” The plaintiff claims that she purchased the product relying on the cholesterol benefit representations and did not get…
A company that supplies specialty ingredients such as vitamins, chemicals and carotenoids to food producers has sued one of its suppliers, alleging that the company was forced to recall from customers more than 33,000 pounds of chromium amino acid chelate after learning that it contained a milk allergen. DSM Nutritional Prods., LLC v. Triarco Indus., Inc., No. C1928-12 (N.J. Super Ct., Morris Cty., filed July 26, 2012). The plaintiff also allegedly reported the matter to the Food and Drug Administration through the Reportable Food Registry. According to the complaint, in 2009, the defendant completed a questionnaire designed to inform the plaintiff “of the existence of any allergens or their derivatives contained in the product” sold to the plaintiff. “Not until July 27, 2010,” however, “did Defendant correctly label the product as containing a hydrolyzed milk protein, thus advising [the plaintiff] that Defendant’s product contained a milk allergen.” Alleging breach of contract…
Turtle Island Restoration Network and the Center for Biological Diversity have filed a complaint for declaratory and injunctive relief in a federal court in California against the Food and Drug Administration (FDA) to force the agency to act on their June 2011 petition seeking to reduce the allowable level of mercury in seafood. Turtle Island Restoration Network v. Hamburg, No. 12-03884 (N.D. Cal., filed July 25, 2012). The organizations claim that while FDA had 180 days, or until December 17, 2011, to respond to the petition, “[t]o date, FDA has neither granted nor denied the petition and has taken no action to reduce human exposure to mercury from commercial fish.” They request a court order declaring that FDA has violated the Administrative Procedure Act and requiring the agency to issue a decision on their petition within 30 days. The plaintiffs contend that FDA’s current action level for mercury in seafood…
The Center for Science in the Public Interest (CSPI) has filed a putative class action on behalf of two named California residents against General Mills alleging that its use of “All Natural,” “Natural,” and “100% Natural” product representations on its Nature Valley® food products is deceptive because they contain high-fructose corn syrup (HFCS), high-maltose corn syrup, and maltodextrin and rice maltodextrin. Janney v. General Mills, No. 12-3919 (N.D. Cal., filed July 26, 2012). According to the complaint, these ingredients are not “minimally processed,” yet the defendant purportedly “takes wrongful advantage of consumers’ strong preference for foods made entirely of natural ingredients” with words and images in its marketing and on product labels evocative of the outdoors and nature. While one of the named plaintiffs purchased “natural” food for a daughter with type 1 diabetes and the other sought an all-natural diet for a daughter with ADHD, they do not allege personal…
A federal court in New Jersey has rejected the claims of objectors questioning class notice and most of the settlement terms in a deal which resolves allegations that Ferrero USA, Inc., the company that makes the hazelnut spread Nutella®, misled consumers about the nutritive value of its product; while the court entered an order finally approving the settlement, it did reduce counsel fees by $1.25 million. In re Nutella Mktg. & Sales Practices Litig., No. 11-1086 (D.N.J., decided July 31, 2012). Additional information about the objectors’ challenge appears in Issue 444 of this Update. Counsel had sought $3.75 million in fees, an amount the objectors claimed was unwarranted. According to the court, the reduced fees represent 25 percent of the value of the gross settlement fund, injunctive relief, costs and the incentive award to the class representatives.
