A California appeals court has affirmed the dismissal of a lawsuit alleging that infant formula was mislabeled because it contained synthetic ingredients, ruling that the plaintiff's state law claim was preempted by the Organic Foods Production Act (OFPA). Organic Consumers Assoc. v. Honest Co. Inc., No. B280836 (Cal. App. Ct., entered June 12, 2018). The advocacy group alleged that the formula contains synthetic ingredients not permitted in organic products under OFPA, thus violating the California Organic Products Act (COPA). "Association’s complaint does not allege that Honest is selling its premium infant formula without having gone through the organic certification process," the court found. "Nor are there any allegations of misconduct by Honest in obtaining or using its organic certification. Rather, the gravamen of Association’s single cause of action under the COPA is that Honest is labeling as organic infant formula that is not in fact organic." The court found this claim preempted by federal law. "If, as Association…
Category Archives U.S. Circuit Courts
Seven advocacy groups, including the Center for Science in the Public Interest, Natural Resources Defense Council and Center for Food Safety, have filed a petition for a writ of mandamus seeking to compel the U.S. Food and Drug Administration (FDA) to issue a decision on a 2015 petition asking FDA to withdraw its approval of seven food additives purportedly shown to cause or linked to cancer. In re Breast Cancer Prevention Partners v. FDA, No. 18-71260 (9th Cir., filed May 2, 2018). According to the petition, the additives—including benzophenone, ethyl acrylate and pyridine—add flavoring to food, such as mango, butterscotch, “floral, cinnamon and mint notes." The petition alleges that “food labels do not indicate whether a product contains any of the seven flavors here at issue. And the degree of risk associated with consumption is impossible to predict. ... [C]oncentrations of the flavors—and, therefore, the health consequences of ingestion—may vary significantly between brands.”
A federal court in Louisiana has dismissed with prejudice a lawsuit alleging that Chipotle Mexican Grill's food caused the plaintiff to contract Helicobacter pylori, holding that the plaintiff had not pleaded "any semblance of a fact that causally connects [his] illness" with Chipotle. Gilyard v. Chipotle Mexican Grill Inc., No. 17-0441 (W.D. La., entered June 14, 2018). The court found that the plaintiff failed to plead "factual allegations sufficient to show that Chipotle failed to act as a prudent person skilled in food preparation." The only factual allegation in the complaint, the court noted, was that the plaintiff regularly ate at Chipotle in the two months before he was diagnosed with an H. pylori infection. Further, the court found, the complaint did not allege how the food was defective, how the duty of reasonable care in making or storing the food was breached, or that Chipotle provided contaminated food or utensils.
A state court has denied a petition to overturn a New York City ban on the use of expanded polystyrene foam (EPS) containers, finding the city's determination “was a painstakingly studied decision and was in no way rendered arbitrarily or capriciously.” In re Application of Rest. Action All. v. City of New York, No. 100731/2015 (N.Y. Super. Ct., New York Cty., entered June 5, 2018). In 2015, the same court vacated and annulled findings by the city commissioner of sanitation in support of the ban because of “shortfalls” in the findings, remanding the matter for reconsideration. “This time,” the court said, “the Commissioner’s findings are based on reviews of petitioners’ evidence and on [the sanitation department’s] further studies and research.” Among the city’s findings, the court said, were (i) a 30-year history of “failure of subsidized markets of foam recyclers”; (ii) the lack of market for post-consumer recycled foam, particularly soiled…
The U.S. Court of Appeals for the Sixth Circuit has affirmed summary judgment in favor of Peristyle LLC, finding that its use of the term "Old Taylor" falls under the Lanham Act's fair use defense. Sazerac Brands, LLC, v. Peristyle, LLC, No. 17-5933/5997 (6th Cir., entered June 14, 2018). The "Old Taylor" mark references Colonel Edmund H. Taylor, Jr., who built the Old Taylor distillery in 1887, and although production at the facility ceased in 1972, Sazerac Brands owns the trademark rights to "Old Taylor" and "Colonel E.H. Taylor." Peristyle was formed to renovate the medieval castle-style building, listed on the National Register of Historic Places as the "Old Taylor Distillery." Although Peristyle has not resumed bourbon production at the facility, it has used the name "Old Taylor Distillery" in its marketing materials. Noting that a defendant seeking shelter under the fair use defense must show use of the mark…
A federal court in New York has dismissed a putative class action alleging that Storck USA L.P. packaged Werther’s Original Sugar Free Chewy Caramels with nonfunctional slack fill and misrepresented the candy's effect on blood glucose levels. Kpakpoe-Awel v. Storck USA L.P., No. 18-1086 (S.D.N.Y., entered June 8, 2018). According to court filings, the parties have entered into a confidential settlement agreement.
California Attorney General Xavier Becerra has filed a lawsuit alleging two companies' toddler formula products contain lead levels higher than U.S. Food and Drug Administration (FDA) standards. California v. Nutraceutical Corp., No. RG18907841 (Cal. Super. Ct., Alameda Cty., filed June 7, 2018). The state alleges that Sammy’s Milk Free-Range Goat Milk Toddler Formula, manufactured and sold by Graceleigh Inc., and Peaceful Planet Toddler Supreme Formula, manufactured and sold by Nutraceutical Corp., contain more than six micrograms of lead—the daily intake limit set by FDA—and fail to include lead warnings on the products' labels. Both companies purportedly market their products as "clean" and "pure." “Toddler formula should contain nutrients that help children grow, not poisonous substances that can threaten their healthy development. No parent should have to worry that the formula they purchase could endanger their child,” said Becerra in a press release. “The levels of lead we found in these formulas…
A Washington federal court has granted summary judgment to the U.S. Department of Agriculture (USDA) in a lawsuit filed by ranchers and cattle producers challenging the agency's regulations governing the removal of country-of-origin labeling (COOL) for beef and pork. Ranchers-Cattlemen Action Legal Fund v. USDA, No. 17-0223 (entered June 5, 2018). The complaint alleged that the 2016 COOL Requirement Removal Rule conflicted with the Tariff Act of 1930, which stated that “every article of foreign origin . . . imported into the United States shall be marked . . . in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article.” The court found that the relevant provisions in the 2016 rule were enacted to comply with World Trade Organization (WTO) decisions finding that the COOL requirements of the Agricultural Marketing Act discriminated against imported meat. The court…
Brinker International Inc. faces a putative class action alleging hackers stole customers' personally identifiable information (PII) from point-of-sale systems at Chili's Grill & Bar in April and May 2018. Steinmetz v. Brinker Int'l, Inc, No. 18-0981 (D. Nev., filed May 30, 2018). The plaintiff seeks damages, an injunction and attorney's fees for negligence and alleged violations of the Fair Credit Reporting Act and Nevada consumer-protection law. Wendy’s International LLC has agreed to settle a lawsuit alleging that a similar point-of-sale breach exposed customers’ PII at more than 1,000 locations nationwide. Jackson v. Wendy's Int'l LLC, No. 16-0210 (M.D. Fla., entered May 25. 2018). The lawsuit was previously dismissed, then an amended complaint proceeded. Terms of the settlement were not disclosed. An Illinois federal court dismissed a putative class action without prejudice after the plaintiffs voluntarily dismissed claims related to a data breach of Panera Bread Co.’s customer records because none…
A couple has reportedly filed a lawsuit against the Texas Department of State Health Services alleging that “burdensome” regulations bar them from selling their canned pickled vegetables at farmers’ markets. The plaintiffs own a farm near Austin and sell vegetables locally, but when they sought to expand into sales of pickled beets, okra and carrots, they learned that Texas bars sales of all pickled vegetables except cucumbers. Under state law, bakers can sell goods at markets, fairs and festivals without becoming licensed food manufacturers. The Health Services Department has limited sales to pickled cucumbers, specifically excluding other canned pickled vegetables. State Rep. Eddie Rodriguez (D-Austin), who sponsored an amendment to the law to allow the sale of pickles, reportedly told the Texas Tribune that he did not know the department’s rules construed "pickles" to mean only pickled cucumbers. "That pickle definition is kind of flying in the spirit of the legislation,”…
