The Center for Science in the Public Interest (CSPI) has filed a lawsuit against the U.S. Food and Drug Administration (FDA) to compel the agency to act on the advocacy group’s 2005 citizen petition requesting regulations about the use of salt as a food additive. Ctr. for Sci. in Pub. Interest v. FDA, No. 15-1651 (D.D.C., filed October 8, 2015). The petition called for FDA to revoke salt’s status as generally recognized as safe, amend prior approvals of salt use, require food manufacturers to reduce sodium levels in processed foods, and mandate labeling messages about the health effects of salt in foods containing more than half an ounce of the substance. The complaint alleges that while “[n]early all Americans consume more sodium than is safe,” “[c]onsumers can exert relatively little control over their sodium intake by adjusting discretionary use of salt” because such use amounts to only 5 to 10…
Category Archives U.S. Circuit Courts
A California federal court has dismissed without leave to amend several claims in a lawsuit alleging that Whole Foods Market fraudulently and misleadingly labeled its 365 Everyday Value ketchup, oatmeal and chicken broth as containing “evaporated cane juice” (ECJ) rather than “sugar.” Pratt v. Whole Food Mkt. Cal., Inc., No. 12-5652 (N.D. Cal., San Jose Div., order entered September 30, 2015). The plaintiff alleged that because Whole Foods failed to use the most common name for the ingredient—as mandated by U.S. Food and Drug Administration rules—the products were misbranded and “cannot be legally sold, possessed, have no economic value, and are legally worthless.” The court first dismissed strict liability allegations, finding that the plaintiff sought to impose a requirement inconsistent with federal law. Turning to the plausibility of the plaintiff’s allegations, the court found his reliance claims contradictory because one claim required him to know nothing about ECJ while the…
A California federal court has granted Foster Farms’ request for declaratory judgment finding that Lloyd’s of London must cover $14 million in costs related to a Salmonella outbreak linked to Foster Farms’ chicken processing facilities. Foster Poultry Farms Inc. v. Certain Underwriters at Lloyd’s London, No. 14-0446 (E.D. Cal., order entered October 9, 2015). Foster Farms’ policy with the insurer included coverage for “Accidental Contamination,” requiring the company to show (i) “an error in the production of its chicken product” and (ii) that consumption of the product “‘would ‘lead to’ bodily injury.” Lloyd’s challenged Foster Farms’ showing of the latter requirement, arguing the destroyed products were not actually contaminated with Salmonella. The court concluded the company had shown the products were contaminated because at the time the U.S. Department of Agriculture’s Food and Safety Inspection Service issued its Notice of Suspension, Foster Farms’ products had tested positive for Salmonella for…
The Ninth Circuit Court of Appeals has rejected Stanislaus Food Products Co.’s attempt to revive a lawsuit alleging that several major manufacturers of tin cans conspired to cede the market to a single company, USS-POSCO Industries (UPI). Stanislaus Food Prods. Co. v. USS-POSCO Industries, No. 13-15475 (9th Cir., order entered October 13, 2015). “This appeal, which centers on tin mill products used to package food, teaches that there’s no substitute for concrete evidence,” the decision begins. Stanislaus, a tomato cannery, alleged that UPI, a joint venture of U.S. Steel and POSCO America Steel Corp., conspired with other tin mill producers to allocate the tin can market to UPI and fix the prices of tin mill products. Stanislaus cited the fact that POSCO never entered the western U.S. market as evidence of conspiracy; the court considered the practicality of the allegations and found them lacking. “A scheme like Stanislaus alleges would not…
Two consumers have reportedly filed a putative class action against Welch Foods, Inc. and Promotion in Motion Cos. alleging their Welch’s fruit snacks products are deceptively advertised as providing vitamins and nutrients despite being “no more healthful than candy.” Atik v. Welch Foods, Inc., No. 15-5405 (E.D.N.Y., filed September 18, 2015). Welch’s packaging advertises its products as produced from “real fruit” despite using only fruit concentrate, the complaint reportedly alleges, and the packaging implies the vitamins in the fruit snacks are derived from the fruit rather than introduced during the production process. This infusion allegedly runs afoul of the U.S. Food and Drug Administration’s “jelly bean rule,” which targets products that would not otherwise meet the agency’s standards for healthful foods without the addition of vitamins during the production process. See FoodNavigator-USA, September 23, 2015. Issue 580
Sazerac Co., maker of Fireball Cinnamon Whisky®, and Stout Brewing Co. have filed a joint stipulation of dismissal with prejudice in a lawsuit alleging that Stout infringed Sazerac’s trademark by selling a malt specialty beer called “Fire Flask.” Sazerac Co. Inc. v. Stout Brewing Co. LLC, No. 15-0107 (W.D. Ky., stipulation filed September 24, 2015). Stout has reportedly agreed to stop selling its existing Fire Flask products and will redesign the label for future production. Each party will pay its own attorney’s fees and costs. Additional details on the August 2015 complaint appear in Issue 576 of this Update. See Law360, September 24, 2015. Issue 580
A Florida federal court has dismissed five putative class action claims, allowing one to continue, against Fifth Generation Inc. in a lawsuit alleging Tito’s® Handmade Vodka is not actually made by hand in “an old fashioned pot still” and thus is deceptively marketed. Pye v. Fifth Generation Inc., No. 14-0493 (N.D. Fla., order entered September 23, 2015). The court cited its May 2015 decision in Salters v. Beam addressing similar claims against Maker’s Mark®, finding that “[m]uch of the analysis here repeats what was said there.” Details about that decision appear in Issue 564 of this Update. The plaintiffs alleged that “handmade” means “made from scratch” or “in small units,” with human involvement in the process. The court disagreed, finding, “No reasonable person would understand ‘handmade’ in this context to mean literally made by hand. No reasonable person would understand ‘handmade’ in this context to mean substantial equipment was not…
A California federal court has denied class certification in a lawsuit consolidated from four separate actions alleging that Hain Celestial Seasonings Teas were produced from ingredients sprayed with pesticides and contained pesticide residue, thus allegedly precluding Hain from labeling its teas as “natural.” In re Hain Celestial Seasonings Prods. Consumer Litig., No. 13-1757 (C.D. Cal., order entered September 23, 2015). In its answer to the complaint, Hain argued the plaintiffs conflated the definitions of “natural” and “organic” in their arguments, noting that under the plaintiffs’ standards, even an apple picked directly from a tree would not be “natural” had pesticides been applied during its growth. The court first chastised the plaintiffs for erroneous references and poorly timed supplemental filings. “Despite 18 months passing between the filing of this lawsuit and the filing of the Certification Motion, Plaintiffs effectively left the Court to drink from a fire hose, perhaps filled with…
A California federal court has denied the U.S. Department of Agriculture’s (USDA’s) motion to dismiss a lawsuit brought by environmental organizations challenging USDA’s issuance of a guidance document about the use of pesticides in compost without first having solicited public comment. Ctr. for Envt’l Health v. Vilsack, No. 15-1690 (N.D. Cal., order entered September 29). The Center for Food Safety (CFS), Center for Environmental Health and Beyond Pesticides challenged USDA’s actions on Administrative Procedures Act (APA) grounds, arguing the agency violated federal procedures by not allowing a formal rulemaking and public comment period about a guidance document permitting the use of compost with pesticides in the production of organic food. The court found that the organizations had sufficiently stated their claim under the APA and had standing to sue. “The agency’s unilateral action to allow compost contaminated with pesticides in organic production was contrary to federal rulemaking requirements as well…
People for the Ethical Treatment of Animals Inc. (PETA) has filed a lawsuit against Whole Foods Market claiming the grocery chain’s “5-Step® Animal Welfare Rating System” is a “sham” because Whole Foods fails to enforce the program against its chicken, turkey, pork and beef suppliers. PETA v. Whole Foods Mkt., Inc., No. 15-4301 (N.D. Cal., filed September 21, 2015). The complaint asserts that “the entire audit process for Whole Foods’ animal welfare standards is a sham because it occurs infrequently and violations of the standards do not cause loss of certification. Indeed, a supplier can be out of compliance for multiple years without losing its certification.” Further, the certification standards “barely exceed common industry practices, if at all.” The complaint coincides with an investigative report from PETA that purportedly exposes several program violations at a Pennsylvania pig farm that supplies to Whole Foods. “‘Humane meat’ is a myth that dupes…
