Several policy groups, including Food & Water Watch and the Center for Food Safety, have filed a lawsuit challenging a U.S. Department of Agriculture (USDA) procedural change in how ingredients are removed from the National List, a list of synthetics exempted from the Organic Foods Production Act (OFPA). Ctr. for Food Safety v. Vilsack, No. 15-1590 (N.D. Cal., filed April 7, 2015). The National List catalogs synthetic and prohibited natural substances that may be used in organic farming despite not being inherently organic because the substances (i) have been determined by USDA not to harm human health or the environment, (ii) cannot be replaced with an organic alternative and (iii) are consistent with organic farming and handling. The groups challenge a 2013 revision to the process for removing an exempted substance from the National List. OFPA created a sunset provision that removed substances from the list—thereby prohibiting their use in…
Category Archives Litigation
According to a Crown Prosecution Service press release, Peter Boddy and David Moss have been sentenced in the first prosecutions stemming from the “horsemeat scandal” of 2013. Moss, the slaughterhouse manager, was convicted of falsifying an invoice during a U.K. Food Standards Agency investigation and received a four-month suspended prison sentence. Slaughterhouse owner Boddy was fined ₤8,000 for failing to keep adequate records that could trace the origin of the meat, and each defendant must also pay costs of ₤10,442 within six months. “This deception is serious—the absence of proper records means that it is not possible to identify whether the horsemeat may have entered the human food chain,” the prosecutor said. “It also means that if there was a problem with the horsemeat it would not be possible to recall it.” Issue 560
The estate and survivors of an 89-year-old woman who died after eating imported pomegranate seeds linked to a Hepatitis A outbreak have filed a wrongful death lawsuit against Townsend Farms Inc., Costco Wholesale Corp. and others alleging strict liability for a product defect, negligence and breach of implied warranties. Schelitzche v. Townsend Farms Inc., No. BC576437 (Cal. Super. Ct., Los Angeles Cty., filed March 23, 2015). The complaint details the 2013 outbreak of Hepatitis A virus, which the U.S. Food and Drug Administration, Centers for Disease Control and Prevention, and state and local health agencies apparently traced to 3-pound bags of Townsend Farms Organic Antioxidant Blend frozen berries sold at Costco. The plaintiffs seek wrongful-death and survival damages and other general, punitive and exemplary damages. While the plaintiffs’ suit is the first to claim wrongful-death damages, details of other lawsuits stemming from the same Hepatitis A outbreak appear in Issues…
The parents of an 11-year-old boy who died in 2013 have filed a wrongful death lawsuit against Quorn Foods, Inc. and several distributors alleging that the mycoprotein in a Quorn® Turk’y Burger caused their son to go into anaphylactic shock, which resulted in his death. Bengco v. Quorn Foods, Inc., No. BC576522 (Cal. Super. Ct., C.D. Los Angeles Cty., filed March 24, 2015). The complaint calls Quorn’s product “highly processed mold,” to which the boy had a severe allergy. According to the complaint, the product label of Quorn’s Turk’y Burger lists “Mycoprotein (47%)” as the first ingredient, and the description explains that “’myco’ is Greek for ‘fungi.’” The description also explains that “[t]here are believed to be over 600,000 varieties of fungi in the world, many of which are among the most sought after foods like varieties of mushrooms, truffles, and morels” but the product is not, the complaint notes, a…
A federal jury in Pennsylvania has found that H.J. Heinz Co. did not appropriate the idea of a dual-opening condiment packaging, the “Dip & Squeeze” packet, from a man who proposed a similar idea during a meeting with the company. Wawrzynski v. H.J. Heinz Co., No. 11-1098 (W.D. Penn., verdict entered April 1, 2015). The plaintiff claimed that after he presented his “Little Dipper” packaging to the company in 2008, Heinz commissioned him to create samples for testing then abruptly ended the relationship in 2009. The “Dip & Squeeze” packet was introduced in 2010. After a three-day trial, the jury found that the man’s idea was novel but different from the product that Heinz ultimately pursued. Additional details on the case appear in Issues 531 and 552 of this Update. See Law360, April 1, 2015; Legal Intelligencer, April 2, 2015. Issue 560
A Florida federal court has granted in part and denied in part a motion to dismiss a putative class action alleging that Snyder’s-Lance, Inc. misleadingly labels its pretzels and chips as “natural” despite containing “unnatural genetically-modified organisms (‘GMOs’) and, in many cases, other unnatural artificial and synthetic ingredients.” Barron v. Snyder’s-Lance, Inc., No. 13-62496 (S.D. Fla., order entered March 20, 2015). The court first found that the plaintiffs sufficiently pled economic harm because they paid a premium price based on the “natural” representation on the labels; requiring them to compare rival products on the dates and at the locations that the plaintiffs purchased Snyder’s-Lance products would be “both impractical and impracticable. Unsurprisingly, it is also unsupported by law,” the court said. Summarizing precedent on the issue, the court then determined that the plaintiffs offered enough of a definition of “natural” to survive the pleadings stage. The plaintiffs’ allegation “that a reasonable…
A California federal court has granted Hershey’s motion for summary judgment in a lawsuit originally alleging that the company mislabels its Kisses®, cocoa products and Ice Breakers® mints with respect to healthy diet claims, sugar-free claims, serving sizes, and the content of antioxidants, nutrients, vanillin, and polyglycerol polyricinoleic acid. Khasin v. The Hershey Co., No. 12-1862 (N.D. Cal., order entered March 31, 2015). The claims were previously cut to a single unfair competition claim over the use of the statement “natural source of flavanol antioxidants” on dark chocolate and cocoa products. Additional information about these rulings appears in Issues 463 and 523 of this Update. The plaintiff argued that Hershey’s claim implied that flavanol antioxidants conferred health benefits, despite evidence showing no such benefit. He failed to prove that the statement in question would be likely to mislead reasonable consumers, the court said. The plaintiff “testified in his deposition that Hershey’s products…
The Tennessee Office of the Attorney General has released an opinion finding that a state law requiring products labeled as “Tennessee Whiskey” or similar designations to be filtered through charcoal unconstitutionally exempts Prichard’s Distillery because the statute includes a grandfather clause created to apply only to the distillery. The 2013 law codified the “Lincoln County Process” of making whiskey, which requires that the product is (i) manufactured in Tennessee; (ii) composed of 51 percent corn; (iii) distilled to no more than 80 percent alcohol by volume; (iv) aged in new, charred oak barrels in-state; (v) filtered through maple charcoal before aging; (vi) placed in the aging barrels at no more than 62.5 percent alcohol by volume; and (vii) bottled at no less than 40 percent alcohol by volume. If a product does not fulfill each requirement, it cannot be advertised, labeled or referred to as “Tennessee Whiskey” or “Tennessee Sour Mash…
A Florida consumer has filed a proposed class action against Hampton Creek, maker of vegan spread “Just Mayo,” in Florida state court alleging that the product is falsely labeled and advertised because it does not contain eggs. Davis v. Hampton Creek Inc., No. 2015-5993-CA (Fla. 11th Jud. Cir. Ct., filed March 13, 2015). The complaint cites definitions of “just” and “mayo” to argue that the product name fools reasonable consumers into believing that it is mayonnaise despite containing no eggs. The plaintiff further points to the label, which includes an egg-shaped outline, and to the website, which previously advertised the product as “an outrageously delicious mayonnaise that’s better for your body, for your wallet, and for the planet.” She alleges a violation of Florida’s consumer-protection statute and unjust enrichment and seeks class certification, damages, restitution, an injunction, and attorney’s fees. Unilever, producer of Hellmann’s mayonnaise, challenged Hampton Creek’s “Just Mayo”…
Citing independent product tests, four consumers seeking to represent a class have filed a lawsuit in California state court alleging that dozens of wineries in the state manufacture and sell wine that contains as much as five times the maximum safe daily limit of arsenic. Charles v. The Wine Grp., Inc., No. BC576061 (Cal. Super. Ct., Los Angeles Cty., filed March 19, 2015). “[J]ust a glass or two of these arsenic contaminated wines a day over time could result in dangerous arsenic toxicity to the consumer,” the complaint alleges. The plaintiffs apparently hired BeverageGrades, an independent laboratory in Colorado, to test for levels of inorganic arsenic, which is “substantially more toxic and dangerous to humans” than organic arsenic, the complaint says. Ingestion is reportedly linked to a variety of health issues, including nausea, vomiting, disturbances of the cardiovascular and nervous systems, and type 2 diabetes. The complaint asserts that in…
