Dr. David Egilman, who was excluded from testifying as an expert witness in the case of a person who claimed the fumes from microwave popcorn caused his lung disease, has reportedly filed a non-party appeal from the decision finding his testimony unreliable. More details about the case and the court ruling appear in Issue 356 of this Update. A federal district court determined in Newkirk v. ConAgra Foods, Inc. that Egilman lacked any scientifically sound basis for attempting to extrapolate workplace exposures to the diacetyl used in popcorn and other baked goods to exposures in the home. Workplace exposures, which have been extensively studied, have linked exposure to the butter-flavoring chemical to bronchiolitis obliterans, a debilitating lung condition often referred to as “popcorn lung.” Egilman, according to a news source, purportedly testified in 2005 in pharmaceutical litigation that he had earned between $2 million and $2.5 million over the previous…
Category Archives U.S. Circuit Courts
The Third Circuit Court of Appeals has allowed claims filed by New Jersey blueberry farmers to proceed against the company that makes a pesticide which allegedly damaged their crops, finding that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not preempt their lawsuit. Indian Brand Farms, Inc. v. Novartis Crop Protection, Inc., No. 08-4484 (3d Cir., decided August 10, 2010). The company changed its pesticide in 1997, and plaintiffs used it the same way they had successfully used prior products, mixing it with fungicides before applying it to their crops. The company’s marketing brochure for the reformulated product said it was safer and more effective and had the same powerful product performance. The brochure contained no instructions for the product’s use, and the product label did not indicate that one of its inert ingredients was an ionic surfactant nor that it should not be mixed with fungicides. The product containing the…
A U.S. magistrate judge in New Jersey has issued an order staying a case that alleges “natural” labeling for Snapple beverages is misleading because the product contains high-fructose corn syrup (HFCS), which plaintiffs contend is not an all-natural ingredient. Holk v. Snapple Beverage Corp., No. 07-3018 (D.N.J., order entered August 10, 2010). The parties drew the court’s attention to a stay issued in similar litigation involving Arizona Iced Tea® beverages. Additional information about that case appears in Issue 356 of this Update. The stay will remain in effect for six months, pending a Food and Drug Administration (FDA) review of the matter. “That time period may be extended for good cause shown, in the event the FDA shows a willingness to consider this issue but needs more time to do so. If, on the other hand, the FDA declines to consider the issue, counsel are directed to notify the Court promptly…
Ocean Spray Cranberries, Inc. has filed a lawsuit against a competitor alleging that it has orchestrated “an unlawful and malicious campaign” against Ocean Spray designed to damage the company’s reputation, frustrate its relationships with customers and undermine its dealings with grower-owners and other cranberry growers in the industry. Ocean Spray Cranberries, Inc. v. Decas Cranberry Prods., Inc., No. 10-11288 (D. Mass., filed August 2, 2010). According to the complaint, the defendants have falsely accused Ocean Spray of creating “a significant oversupply of cranberries” in the industry and contributing to that surplus by reducing the amount of cranberries in its products. Ocean Spray details the various means the defendant has used to disseminate its “smear campaign,” including letters to growers, blog posts, and a letter to the U.S. Attorney General seeking an investigation of Ocean Spray. Ocean Spray also alleges that the defendant developed a “false and misleading social media campaign”…
Seeking to represent a statewide class of all those who purchased extra virgin olive oil during a four-year period, one of Bravo TV’s “Top Chefs” and individual consumers have sued companies that make and sell the product, alleging that it often does not meet international and U.S. standards. Martin v. Carapelli USA, LLC, No. BC442300 (Cal. Super. Ct., Los Angeles Cty., filed July 30, 2010). The complaint cites a June 2010 study conducted by University of California at Davis’s Olive Oil Center researchers who apparently concluded that samples of imported olive oil labeled as “extra virgin” often did not meet applicable standards. They allegedly determined that the failures could be attributed to (i) oxidation from poor handling, (ii) “adulteration with cheaper refined olive oil,” or (iii) oil made from inferior olives, processing flaws, and/or improper oil storage. According to the complaint, “For years, chefs and home cooks have shared anecdotal…
Lawyers for Sholom Rubashkin, who was recently sentenced to 27 years in prison for financial fraud discovered in connection with a kosher meatpacking plant in the aftermath of a 2008 raid to find illegal immigrants, have alleged trial-court improprieties in their request for a new trial. U.S. v. Rubashkin, No. 08-1324 (N.D. Iowa, filed August 5, 2010). According to Rubashkin’s motion, the federal district court occupied temporary space near the plant so that the 300-plus undocumented workers arrested in the raid could be processed the following day. This raised the issue of Judge Linda Reade’s prior involvement with prosecutors. “Indeed, Chief District Judge Linda Reade stated in September 2008 in a written opinion that she engaged in purportedly limited ‘logistical cooperation’ with law-enforcement authorities in order to provide attorneys and interpreters for the arrested aliens and to conduct their trials in Waterloo.” To the contrary, Rubashkin claims, eight months after…
A federal court in California has reportedly dismissed claims that ConAgra Foods, Inc. provided inadequate cooking instructions on its chicken pot pie products. Meaunrit v. ConAgra Foods, Inc., No. 09-02220 (N.D. Cal., decided July 20, 2010). More than 250 people purportedly got sick after eating the company’s pot pies in 2007 in a Salmonella outbreak that led to a nationwide recall. The named plaintiff in this putative class action apparently did not get sick, but claimed that the company put human health at risk by providing inadequate cooking instructions too difficult for the average consumer to understand. She also alleged that the company’s production facilities subjected consumers to food borne illnesses by failing to adequately prevent bacterial contamination of its products. According to the court, federal agencies pre-approved ConAgra’s product labeling and, “[b]ecause the pre-approval process includes a determination of whether the labeling is false and misleading, and the gravamen of…
A federal court in California has denied in part and granted in part the motion to dismiss filed by Smart Balance, Inc., which is defending a putative class action alleging that the company misled consumers by marketing its Nucoa margarine as cholesterol-free and healthy despite the artificial trans fat in the product. Yumul v. Smart Balance, Inc., No. 10-00927 (C.D. Cal., order entered July 30, 2010). The plaintiff alleges violations of the state’s unfair competition and false advertising laws and violation of the Consumer Legal Remedies Act. She seeks an injunction requiring that the misleading advertising practices cease, a corrective advertising campaign, restitution, and an injunction requiring the destruction of all misleading and deceptive materials and products. The defendant asserted that the factual allegations lacked sufficient specificity and also contended that the complaint be dismissed because it was based on conduct outside the applicable limitations period. Declining to consider some materials submitted…
With one judge dissenting, the D.C. Circuit Court of Appeals has determined that federal law does not bar domestic almond producers from challenging a rule that requires them to pasteurize or chemically treat their product to prevent Salmonella outbreaks. Koretoff v. Vilsack, No. 09-5286 (D.C. Cir., decided August 3, 2010). While the court allowed those who grow almonds to continue pursuing their challenge to the 2007 rule, it dismissed the claims of companies that package and sell the almonds to consumers, finding that, as “handlers,” they must first exhaust their administrative remedies before turning to the courts to resolve their dispute. The U.S. Department of Agriculture secretary promulgated the challenged rule under the authority of the Agricultural Marketing Agreement Act of 1937 (AMAA). California almond producers and retailers claim that the rule is arbitrary and capricious because it devastated the domestic raw almond market while leaving foreign producers, who are…
The D.C. Circuit Court of Appeals has upheld, in part, the Environmental Protection Agency’s (EPA’s) denial of objections filed to its final rule revoking all residues of the pesticide carbofuran permitted on or in raw and processed foods. Nat’l Corn Growers Ass’n v. EPA, No. 09-1284 (D.C. Cir., decided July 23, 2010). EPA revoked the carbofuran “tolerances” after notice-and-comment rulemaking because it determined that aggregate dietary exposure to residues of carbofuran is “not safe” and because exposure to the chemical in drinking water exceeded “the level of concern with respect to both children and adults.” This action effectively banned its use on both domestic and imported food for human consumption. The U.S. company that makes the pesticide and several trade organizations filed objections to the revocation and a hearing request, which EPA denied. While the objectors had participated in the rulemaking proceeding, they attempted to either introduce new evidence during the…
