POM Wonderful LLC has filed a complaint for declaratory relief in a D.C. federal court against the Federal Trade Commission (FTC), alleging that it (i) exceeded its authority in requiring Food and Drug Administration (FDA) preapproval of health-related claims on food products, that is, those claims stating that a product treats, mitigates or prevents disease, and substantiation of non-disease-related claims with two “well-controlled” clinical studies; (ii) violated advertisers’ First and Fifth Amendment rights by requiring compliance with these new standards; and (iii) failed to comply with notice and comment rulemaking procedures in establishing the standards. POM Wonderful LLC v. FTC, No. 10-1539 (D.D.C., filed September 13, 2010). According to the complaint, FTC has advised POM Wonderful that it must comply with standards recently announced in consent orders against other companies and now apparently applicable to the food and dietary supplement industry as a whole. Additional information about one of those orders…
Category Archives U.S. Circuit Courts
A federal court in Illinois has dismissed claims that companies failing to disclose that the fiber in their snack-bar and yogurt products is “non-natural” chicory root-based inulin, which allegedly lacks the same health benefits as “natural” fiber, have violated state consumer fraud laws. Turek v. General Mills, Inc., No. 09-7038 (N.D. Ill., decided September 1, 2010). According to the court, the plaintiff’s claims are expressly preempted by the federal Nutritional Labeling and Education Act (NLEA) because they would impose requirements under state law that are not identical to federal law requirements. The products at issue are labeled with statements about the percent of daily fiber they contain or grams of fiber provided per serving. Discussing the application of preemption provisions in various federal laws, the court also sets out all of the federal regulations pertaining to fiber in foods. The court concludes, “plaintiff wants to change the labeling on defendants’…
The Eighth Circuit Court of Appeals has affirmed the dismissal of one defendant and several claims in multidistrict litigation (MDL) alleging that a dairy certified as organic and the retailers selling its milk violated state deceptive trade practices laws because the dairy did not comply with national organic program standards. In re: Aurora Dairy Corp. Organic Milk Mktg. Sales Practices Litig., No. 09-2762 (8th Cir., decided September 15, 2010). While finding express and conflict preemption as to those matters dismissed, the court also determined that some claims could survive, depending, on remand, how the district court rules on defendants’ motions to strike the consolidated class complaint and the plaintiffs’ motion to amend that complaint. Dismissed outright from the 19 consolidated putative class actions was the company that certified Aurora Dairy as an organic supplier. According to the court, “to the extent state law permits outside parties, including consumers, to interfere…
Federal officials have indicted executives of a German import company, a Chinese national and a number of companies, charging them with importing honey from China into the United States by illegal means that avoided the payment of duties and allowed product adulterated with antibiotics to enter the country. U.S. v. Wolff, No. 08-417 (N.D. Ill., filed August 31, 2010). The honey was purportedly shipped through other countries, such as South Korea, Taiwan, Thailand, India, the Philippines, Indonesia and Russia, mislabeled and then shipped to the United States, thus avoiding some $78 million in anti-dumping duties applicable to Chinese-origin honey. The conspiracy allegedly began in early 2002 and ended in early 2009. The indictment includes 44 counts of illegal activity, including falsifying documents and placing into interstate commerce food with unsafe additives, specifically, the antibiotics norfloxacin and ciprofloxacin. Meanwhile, a coalition of honey producers has reportedly called on the industry to…
On behalf of a putative nationwide class of indirect potato purchasers, a San Francisco restaurateur has sued a number of potato industry participants, including co-operatives, growers, packers, and distributors, alleging that they have conspired since 2006 to control and reduce the supply of potatoes in an effort to keep crop prices high. Florez v. Idahoan Foods, LLC, No. 10-3984 (N.D. Cal., filed September 3, 2010). The complaint refers to specific meetings of “cartel” members and discusses newspaper articles comparing the cooperative venture to OPEC, the oil-producing country organization that controls output and pricing in that industry. Member growers purportedly reduced their acreage, in some instances plowing under crops already grown, and submitted to audits to confirm that they were complying with production limits. Alleging that class members were harmed by paying “supracompetitive prices for potato products during the class period, higher than that which they would have paid in the…
After the U.S. Department of Agriculture announced that it had begun issuing permits to sugar beet seed producers to plant genetically modified (GM) crops this fall, the Center for Food Safety and a number of other groups filed a lawsuit in federal court challenging the action. When Agriculture Secretary Tom Vilsack announced the agency’s “next steps” as to Roundup Ready® sugar beets, he acknowledged the August 2010 federal court ruling that returned GM sugar beets to regulated status until the Animal and Plant Health Inspection Service (APHIS) can complete an environmental impact statement (EIS) about the effects of deregulating the crop. According to APHIS, producers who have applied for the permits will be allowed to plant GM seedlings immediately but must not allow them to flower, and the agency will make decisions about interim regulatory measures by the end of the year on the seed producer’s request to partially deregulate…
According to a news source, a federal court in Virginia, adopting a magistrate judge’s recommendation, has approved a $12 million settlement that will compensate those who became ill or died after consuming products containing Salmonella-contaminated peanuts. In re: Peanut Butter Corp. of Am., No. 10-cv-27 (W.D. Va., decided September 2, 2010). Among the 122 eligible claimants are 45 minors and nine wrongful death claimants. The contaminated peanut butter and peanut paste were used in hundreds of products and led to a massive recall of foods such as candy, crackers and cookies. The outbreak purportedly sickened more than 700 people throughout the country and was linked to nine deaths. The settlement has reportedly been funded by the insurance carrier for the bankrupt peanut company. See Mealey’s Litigation Report: Food Liability, September 2, 2010. Meanwhile, The Associated Press (AP) has reported that the peanut company’s former president is currently employed as an industry consultant.…
A federal court in California has denied a walnut producer’s request to dismiss claims alleging that the company falsely advertises its products by asserting that the omega-3 in walnuts has certain health benefits. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., filed September 3, 2010) (unpublished). Alleging violations of California consumer protection laws, the plaintiff claims that the “statements are misleading because the Shelled Walnut products do not provide the health benefits claimed on the package labels.” The defendant argued that the plaintiff’s claims were preempted by the Federal Food, Drug, and Cosmetic Act and Nutrition Labeling and Education Act. The court disagreed, finding neither express nor implied preemption. According to the court, the claims either did not fall within the scope of federal law or state law imposed identical requirements, which are allowed under federal law.
A federal court in New York recently refused to certify a statewide class of consumers who allege that Snapple Beverage Corp. misled them by marketing its products as “all natural” when they actually contain high-fructose corn syrup (HFCS). Weiner v. Snapple Beverage Corp., No. 07-8742 (S.D.N.Y., order entered August 5, 2010). The court apparently determined that individual issues, such as causation, injury and damages, would predominate over common ones. According to the court, “Individualized inquiries would be required to determine, for instance whether class members were fully informed about the inclusion of HFCS in Snapple beverages, whether they believed HFCS to be natural, and whether they continued to purchase Snapple despite their beliefs concerning HFCS. Such individual issues would also dwarf any issues of law or fact common to the class.” The court also reportedly determined that the named plaintiffs did not proffer a suitable methodology for establishing causation and…
Finding the plaintiffs’ state-law claims preempted, a federal court in California has dismissed a putative class action alleging that the Kroger Co. falsely labeled its margarine and graham crackers as “0g Trans Fat per serving” and “a Cholesterol Free Food,” when they actually contain various hydrogenated oils. Red v. The Kroger Co., No. 10-01025 (C.D. Cal., decided September 2, 2010). According to the court, the Food and Drug Administration has promulgated specific regulations on the use of these terms, and because the products at issue comply with the requirements under which the terms can be used, the plaintiffs’ claims are expressly preempted under the National Labeling and Education Act of 1990. In the court’s words, “Plaintiffs cannot escape the fact that they seek to enjoin exactly what federal law expressly permits.” Alleging the violation of California consumer protection statues, the plaintiffs had sought an order compelling the defendant to (i) cease…
