A number of companies that make cereals and other products containing acrylamide, a chemical believed to be a byproduct of the Maillard reaction and found in baked or fried starchy foods, have been sued under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) for failing to provide warnings to consumers. RBC Four Co. LLC v. Post Foods, LLC, No. BC507122 (Cal. Super. Ct., Los Angeles Cty., filed April 30, 2013). According to the plaintiff, the chemical was added to the Prop. 65 list as a substance known to the state to cause cancer in January 1990 and became subject to the law’s warning requirements 20 months later. The complaint also notes that the current safe-harbor acrylamide-intake level is .2 μg/day and that the defendants’ products contain acrylamide levels that exceed maximum allowable dose levels “for chemicals causing reproductive toxicity with require warnings under Proposition 65.” Alleging that…
Category Archives Litigation
A federal court in New York has amended the preliminary injunction entered against Kangadis Food Inc., doing business as The Gourmet Factory, originally requiring that the company send stickers to affix to all products sold as “100% Pure Olive Oil” and provided to wholesalers and retailers before March 1, 2013, because those products were actually made from Pomace, a processed oil made from olive pits, skins and pulp. N. Am. Olive Oil Ass’n v. Kangadis Food Inc., No. 13-868 (S.D.N.Y., order entered May 7, 2013). Additional information about the earlier injunction appears in Issue 482 of this Update. The stickers were intended to inform consumers that the products were not “100% Pure Olive Oil.” The parties sought reconsideration after Kangadis indicated that it would prefer to recall its products from wholesalers and replace them with tins and bottles that do not contain Pomace. The plaintiff trade association agreed to allow…
A federal court in California has rendered its reluctant approval of a preliminary settlement in class litigation against Kellogg Co., alleging that the company falsely advertised its cereal product as a food that could help improve children’s attentiveness by 20 percent. Dennis v. Kellogg Co., No. 09-1786 (S.D. Cal., order entered May 3, 2013). The matter had been remanded from the Ninth Circuit, which reversed an earlier settlement approval, finding that the cy pres distribution to organizations helping the indigent of funds remaining after the class claims were paid had not been properly assigned. Additional information about the Ninth Circuit’s decision appears in Issues 447 and 453 of this Update. The district court observes that the new designated cy pres recipients, the Consumers Union, Consumer Watchdog and Center for Science in the Public Interest, are appropriate as consumer-protection organizations, but expresses its dismay over the decrease in cash value to…
The Congressional Research Service (CRS) recently issued a report to explore whether U.S. Department of Agriculture (USDA) proposed rules on labeling muscle cuts of meats will comply with World Trade Organization (WTO) findings that current country-of-origin labeling (COOL) requirements discriminate against livestock imports. Titled “Country-of-Origin Labeling for Foods and the WTO Trade Dispute on Meat Labeling,” the report reviews events that led to the WTO ruling which followed a challenge filed by Canada and Mexico to the 2008 farm bill amendments that adopted the disputed COOL provisions. A WTO arbitrator established May 23, 2013, as the deadline for the United States to comply. Various stakeholders have apparently presented a number of options to bring the United States into compliance, and USDA issued a proposed rule in March. Canada and Mexico have evidently argued that the proposed rule does not fulfill U.S. WTO obligations, and the CRS report notes that this…
According to a news source, a California judge recently determined that the California Department of Food and Agriculture did not comply with statutory requirements when it created the state’s Raisin Marketing Board 15 years ago, agreeing with a challenge filed by dissident raisin growers and packers who have long complained about paying for marketing with which they did not agree. Superior Court Judge Raymond Cadei reportedly determined that the raisin industry did not prove that the industry was in crisis when the board was formed, stating, “[t]he record shows that there was no evidence of the kind of severe adverse economic conditions the Marketing Act was intended to address.” The court also ordered the board to repay the plaintiffs’ assessments, which could reach millions of dollars. Board officials have indicated they will explore all legal options to keep the board operating. See The Fresno Bee, April 27, 2013.
California’s attorney general (AG) has filed a suit against a number of candy manufacturers and grocery retailers, alleging that they have violated Proposition 65 (Prop. 65) by failing to label “ginger candies and other food products containing ginger” and/or “plum candies and other products containing plums,” which the AG claims contain lead, a substance known to the state “to cause cancer, birth defects, and other reproductive harm.” People v. Dakota Bros., No. __ (Cal. Super. Ct., San Francisco Cty., filed April 30, 2013). Under Prop. 65, “businesses must provide a ‘clear and reasonable warning’ before exposing individuals to lead,” according to the complaint, and the defendants have allegedly not provided such warnings. The AG seeks civil penalties, not to exceed $2,500 per day for each violation, injunctive relief, attorney’s fees, and costs.
A federal court in Georgia considering the criminal charges filed against former Peanut Corp. of America owner Stewart Parnell has denied his request for the return of his passport “for purposes of employment-related international travel.” United States v. Parnell, No. 13-12 (M.D. Ga., order entered April 26, 2013). Parnell apparently surrendered his passport as a condition of his pretrial release. Parnell and company managers were charged in a 76-count indictment over a nationwide Salmonella outbreak in 2009. Additional information about the charges appears in Issue 472 of this Update. According to the court, Parnell was allowed to be released “on an unsecured $100,000 bond with no pretrial supervision by the U.S. Probation Office,” and, because he did not show that he cannot find employment within the United States and no other changes have taken place since the conditions were set, the court had no basis for returning the passport.
Monster Beverage Corp. has filed a complaint for declaratory and injunctive relief against San Francisco’s city attorney, who launched an investigation into the company’s alleged marketing of energy drinks to children in October 2012. Monster Beverage Corp. v. Herrera, No. 13-786 (C.D. Cal., E. Div., filed April 29, 2013). According to the complaint, City Attorney Dennis Herrera has threatened to sue the company under the Sherman Law and California’s consumer protection laws if Monster does not agree to reformulate its product to lower the caffeine content, provide adequate warning labels, cease promoting over-consumption in marketing, cease using alcohol and drug references in marketing, and cease marketing to minors. The energy beverage maker contends that Herrera’s investigation and demands are preempted by federal law and represent an attempt to “usurp FDA’s [the Food and Drug Administration’s] regulatory authority” contrary to the primary-jurisdiction principle. Monster also claims that Herrera’s conduct violates the…
A federal court in California has reportedly ordered two plaintiffs’ law firms to disclose under seal any contributions made “either directly or indirectly by the firm or by any member of the firm to the Democratic Attorneys General Association from January 1, 2012, to present, and any communications between either law firm and the Mississippi Attorney General’s office concerning any such contribution.” In re Diamond Foods, Inc., Securities Litig., No. 11-5386 (N.D. Cal., order entered April 23, 2013). The order follows Diamond Food’s opposition to the appointment of the Mississippi Public Employee Retirement System (MPERS) as class representative in a securities class action alleging that the food company improperly accounted for some $50 million in payments to walnut growers. When the payments, allegedly intended to artificially lower the company’s fiscal 2011 costs, were revealed, a $2.3 billion deal to acquire the Pringles brand was purportedly delayed and later fell apart,…
A federal court in New York has agreed to impose some of the preliminary injunctive relief requested by the North American Olive Oil Association in litigation alleging that Kangadis Food Inc., doing business as The Gourmet Factory, falsely labeled its product as “100% Pure Olive Oil” when it actually contained Pomace or was 100 percent refined olive oil. N. Am. Olive Oil Ass’n v. Kangadis Food Inc., No. 13-868 (N.D.N.Y., order entered April 25, 2013). The court agreed that consumers would likely be confused about Pomace, “an industrially processed oil produced from olive pits, skins, and pulp,” labeled as “100% Pure Olive Oil,” and agreed that the defendant, which had changed its product as of March 1, 2013, to remove the Pomace and sell instead 100 percent refined olive oil as “100% Pure Olive Oil,” likely had a significant amount of its old product on store shelves. Accordingly, the court…
