Nonprofit consumer advocacy organization Food & Water Watch, Inc. and two of its members have filed an action against the U.S. Department of Agriculture (USDA) and its Food Safety and Inspection Service seeking to enjoin their new National Poultry Inspection System (NPIS) rules. Food & Water Watch, Inc. v. Vilsack, No. 14-1547 (D.D.C., filed September 11, 2014). Details about the rules, which take effect October 20, 2014, appear in Issue 532 of this Update. The plaintiffs allege that the rules violate the Poultry Products Inspection Act (PPIA) and Administrative Procedure Act (APA). They interpret the PPIA as requiring “that federal inspectors critically appraise all chicken and turkey carcasses and viscera,” and set forth how increased line speeds and rules giving poultry employees, without training or certification, the authority to inspect and remove adulterated birds or parts from processing lines before inspectors see them violate this requirement. Without actual inspection of every bird,…
Category Archives Litigation
Following a seven-week trial in Albany, Georgia, a jury has reportedly convicted former Peanut Corp. of America owner Stewart Parnell, his brother Michael Parnell and quality assurance manager Mary Wilkerson on charges stemming from a 2008-2009 Salmonella outbreak that sickened hundreds of people nationwide and was linked to nine deaths. United States v. Parnell, No. 13-cr-12 (U.S. Dist. Ct., M.D. Ga., Albany Div., verdict entered September 19, 2014). Details about the mail and wire fraud, obstruction and conspiracy charges appear in Issue 472 of this Update. The conspiracy and obstruction charges each carry a potential sentence of 20 years in prison; sentencing will occur at a later date. Two former plant managers who were also charged entered guilty pleas that required them to cooperate with the prosecution. According to a news source, this could be the first time that corporate executives and facility workers have gone to trial in the…
A California state court has adjusted the language in the soft drink tax on the November 2014 ballot by replacing “high-calorie, sugary drink” with “sugar-sweetened beverages” to clarify the proposed tax and to conform with election codes. Johnson v. Numainville, No. RG14786763 (Cal. Super. Ct., Alameda Cty., order entered September 2, 2014). Agreeing with the two Berkeley residents who filed the lawsuit, the court found that “the ballot question here asking whether a tax should be imposed on ‘high-calorie, sugary drinks’ is likewise a form of advocacy and therefore not impartial. This phrase suggests that the tax will be limited to certain beverages that contain more than the average calories and too much sugar; in other words, beverages that most people would find to be unhealthy.” The court also found issue with the City Attorney’s Impartial Analysis of the measure, which described it as a tax on “high-calorie, low nutrition”…
According to a news source, the Center for Environmental Health has filed a lawsuit under California’s Safe Drinking Water and Toxic Enforcement Act (Prop. 65), alleging that Reed’s Ginger Products fails to warn consumers about the caramel-coloring chemical 4-methylimidazole (4-MEI) purportedly present in its soft drinks. Ctr. for Envtl. Health v. Reed’s, Inc., (Cal. Super. Ct., Alameda Cty., filing date unknown). In a June 26, 2014, 60-day notice, the center claimed that the company had violated the law since January 2012, stating, “No clear and reasonable warning is provided with these products regarding the carcinogenic hazards associated with 4-MEI exposure.” Prop. 65, a voter-approved law, requires warnings to consumers about exposures to substances known to the state to cause cancer or reproductive hazards and allows private individuals or organizations to enforce it. See Courthouse News Service, September 11, 2014. Issue 537
Defense counsel and a U.S. attorney made their closing arguments September 11-12, 2014, in the criminal trial of three former Peanut Corp. of America officials and employees who were charged with mail and wire fraud, obstruction, conspiracy, and other counts relating to a nationwide 2008-2009 Salmonella outbreak linked to the company’s Blakely, Georgia, facility. United States v. Parnell, No. 13-cr-12 (M.D. Ga.). Details about the charges appear in Issue 472 of this Update. The prosecution reportedly rested its case on September 11 in a trial that began August 2, and just one defendant—Michael Parnell—chose to present any evidence during a session lasting about an hour. His counsel argued that Michael was not a company director and never received a Peanut Corp. paycheck; rather, he was a customer who purchased tainted food from his brother Stewart’s plant, said a news source. Former owner Stewart Parnell decided not to introduce any testimony, and during…
In light of representations that the parties are close to settlement, a multidistrict litigation (MDL) court has continued to stay proceedings in litigation alleging that the isolated appearance of genetically modified (GM) wheat in Oregon, which purportedly led Japan and South Korea to suspend imports of soft-white wheat from the United States, caused wheat farmers to sustain economic losses. Barnes v. Monsanto Co., C.A., MDL No. 13-2473 (D. Kan., order entered September 10, 2014). Information about the lawsuit filed by Kansas farmer Ernest Barnes appears in Issue 486 of this Update. The court ordered the parties to file stipulations of dismissal of the soft-white wheat claims on or before September 29, 2014, or to submit a scheduling order, discovery plan and early mediation plan by November 7. Issue 537
The Natural Resources Defense Council (NRDC) and other groups have requested that the Second Circuit Court of Appeals reconsider its decision that the U.S. Food and Drug Administration (FDA) is not required to begin proceedings to withdraw approval of certain antibiotics in livestock feed. NRDC Inc. v. FDA, No. 12-2106 (2d Cir., petition filed September 8, 2014). Additional details about the Second Circuit’s split ruling appear in Issue 531 of this Update. According to a news source, the petitioners contend that the panel majority overlooked FDA’s initial findings that the use of antibiotics in animal feed is unsafe and “writes the withdrawal provision out of the Food and Drug Act.” FDA considered the safety of penicillin and tetracyclines in animal feed in 1977, but never conducted adversarial hearings with industry as purportedly required under the law, opting instead to seek the voluntary withdrawal of animal feed with antibiotics from the market. See Law360,…
A federal court in Idaho has denied, in part, the motion to dismiss filed by state officials in a challenge filed by animal-rights activists and other groups to a law that criminalizes the undercover investigations of agricultural operations. Animal Legal Defense Fund v. Otter, No. 14-0104 (D. Idaho, order entered September 4, 2014). The court agreed to dismiss the governor who lacked enforcement authority under the law and emphasized that its rulings did not address the merits of the plaintiffs’ claims of First Amendment and Equal Protection violations, as well as preemption under three federal laws that protect whistleblowers. According to the court, the law was enacted after Mercy for Animals Dairy released a video of workers abusing cows at an Idaho dairy. The footage had been obtained by an undercover investigator who misrepresented his identity to gain access to the facility and made the audiovisual recordings without the dairy owner’s knowledge…
A Florida federal court has denied Anheuser-Busch’s motion to dismiss a case accusing the beverage company of misleading consumers into believing that Beck’s beer was still brewed in Germany, finding that the plaintiffs adequately pleaded their claims. Marty v. Anheuser-Busch Cos., No. 13-23656 (S.D. Fla., order entered September 5, 2014). In 2012, Anheuser-Busch moved production of Beck’s, brewed in Germany from 1873, to St. Louis, Missouri. The company added a “Product of the U.S.A.” disclaimer to the Beck’s packaging, but the plaintiffs argued that the disclaimer was too small, too difficult to read due to its white script on a silver background and blocked by the cans or bottles in the carton, and the court agreed, allowing the unjust enrichment and consumer protection violations claims to proceed. Citing the plaintiffs’ statements that they stopped buying Beck’s when they learned of its brewing source, the court granted Anheuser-Busch’s motion to dismiss…
A Florida federal court has rejected a motion to dismiss in a case accusing Bodacious Foods of labeling its cookies as “all natural” despite containing sugar, canola oil, dextrose, corn starch, and citric acid, which the plaintiff alleges should preclude Bodacious from using the “natural” label. Dye v. Bodacious Food Co., No. 14-80627 (S.D. Fla., order entered September 9, 2014). Bodacious argued that the U.S. Food and Drug Administration (FDA) should have primary jurisdiction over the case, but the court disagreed, finding that FDA has declined to regulate the use of “natural” in food labeling. The cookie company also argued that its inclusion of all ingredients on the label was clear and not misleading, but the court found it “plausible that a consumer might rely on the ‘all natural’ representation without scrutinizing the ingredients or, alternatively, that a consumer might incorrectly believe that sugar, canola oil, dextrose, corn starch, and citric…
