The Food and Drug Administration (FDA) and the Natural Resources Defense Council (NRDC) have agreed to a timeline for the production of material NRDC requested under the Freedom of Information Act (FOIA) involving bisphenol A (BPA) in food packaging and food contact materials. NRDC v. FDA, No. 11-8662 (S.D.N.Y., stipulation and order filed February 21, 2012). Additional information about the litigation appears in Issue 420 of this Update. The agreement narrows the request, limits the FDA offices required to conduct searches for responsive records and specifies the format in which the records will be produced. It also creates a timeline for FDA to produce internal material, material involving other agencies and a list of withheld documents. Any further proceedings in the litigation NRDC filed to force the agency to respond to its FOIA request are stayed until further order of the court on or after August 22, 2012. NRDC is…
Category Archives Litigation
A federal court in South Carolina has reportedly determined that a tomato grower seeking damages from the U.S. Food and Drug Administration (FDA) allegedly caused by a 2008 tomato recall that followed a Salmonella outbreak which was ultimately found not to be linked to contaminated tomatoes, may pursue negligence claims against the agency. Williams Farms Produce Sales, Inc. v. United States, No. 11-01399 (D.S.C., order entered February 23, 2012). Further details about the case appear in Issue 398 of this Update. The court has apparently dismissed claims of defamation, slander of title, product/commercial disparagement, unconstitutional taking, and violation of unfair trade practices law. See Law360, February 23, 2012.
A federal magistrate judge in Illinois has stayed a putative class action, the fourth of five brought against The Quaker Oats Co., alleging that the company deceives consumers by representing that its granola and oatmeal products are “heart healthy,” “wholesome,” and a “smart choice made easy,” when they actually contain trans fat. Askin v. The Quaker Oats Co., No. 11-111 (N.D. Ill., order entered February 15, 2012). The named plaintiff, a New York resident, filed his complaint on behalf of a putative nationwide class after other similar suits were filed in California, where they are proceeding as one consolidated action. He unsuccessfully sought to consolidate all of the action in Illinois before a multidistrict litigation court. Quaker and the intervening plaintiffs, who filed the California actions, asked the court to dismiss the Illinois action under the first-to-file rule, and the court denied the request despite finding that the suits are…
The Center for Environmental Health has filed a notice of violation under California’s Safe Drinking Water and Toxic Enforcement Act (Prop. 65) to inform the manufacturer and retailers of several carbonated soft drinks containing caramel coloring that it will file a citizen enforcement lawsuit against them for violating Prop. 65’s warning provision since January 7, 2012, with respect to 4-methylimidazole (4 MEI). According to the notice, “No clear and reasonable warning is provided with these products regarding the carcinogenic hazards associated with 4-MEI exposure.” The notice also states that the lawsuit will be filed unless each “alleged violator enters into a binding written agreement to remedy the violations alleged herein by: (1) recalling products already sold; (2) reformulating such products to eliminate the 4-MEI exposure or taking appropriate measures to otherwise comply with Proposition 65; and (3) paying an appropriate civil penalty based on the factors enumerated” in California’s Health…
A Georgia resident has filed a complaint in federal court on behalf of a statewide class of consumers allegedly misled about the purported health benefits of POM Wonderful’s pomegranate products. Templeton v. POM Wonderful, LLC, No. 12-53 (S.D. Ga., filed February 16, 2012). According to the complaint, the company promotes its products “as having special health benefits, including but not limited to, the prevention[,] mitigation, and/or treatment of the following: (a) Atherosclerosis; (b) Blood Flow/Pressure; (c) Prostate Cancer, (d) Erectile Function; (e) Cardiovascular Disease; (f) Reduce LDL Cholesterol; (g) and other age-related medical conditions.” Citing investigations by the National Advertising Division of the Council of Better Business Bureaus, the U.K.’s Advertising Standards Authority, U.S. Food and Drug Administration, and U.S. Federal Trade Commission, the plaintiff claims that these promotions are not substantiated by medical evidence. Alleging violations of the Georgia Uniform Deceptive Trade Practices Act and unjust enrichment, the plaintiff…
Frito-Lay North America, Inc. has filed a trademark and patent infringement lawsuit in a Texas federal court against a company that purportedly makes a similar tortilla chip product and sells it in similar packaging. Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., No. 12 00074 (E.D. Tex., filed February 10, 2012). At issue are Frito-Lay’s TOSTITOS SCOOPS! ® tortilla corn chips, which have a distinctive shape for use with salsa, guacamole and other dips. According to the complaint, Frito-Lay has registered the shape, brand design, and product and brand names as marks with the U.S. Patent and Trademark Office and holds several patents for the processes and systems used to manufacture the chips. The defendant makes and sells a product called BOWLZ, which Frito-Lay alleges infringes its marks, trade dress and patents. With counts for federal trademark infringement, trade dress infringement and unfair competition, federal trademark dilution, patent infringement, common law…
A federal court in Pennsylvania has granted the U.S. government’s motion for summary judgment and permanently enjoined a Pennsylvania dairy farmer from selling raw milk and milk products in interstate commerce. United States v. Allgyer, No. 11-02651 (E.D. Pa., decided February 2, 2012). According to the court, Daniel Allgyer’s interstate sales of raw milk were discovered through an undercover investigation that involved placing online orders for the product through a membership-only group. Members were cautioned by the website to “not share information” about the group with government agencies or doctors. The Food and Drug Administration (FDA) apparently purchased some of the milk for delivery out of state, and independent testing confirmed that it was unpasteurized. FDA warned the farmer to stop violating federal law, but he continued to make deliveries to out-of-state consumers through a different membership organization. The court rejected the defendant’s arguments that summary judgment should not be…
A California-based attorney is apparently considering filing a class action lawsuit against Gerber on behalf of consumers purportedly misled by the company’s promotions for its baby food products. According to Ronald Marron, “Gerber claims that NutriProtect™ is ‘Nutrition for Healthy Growth & Natural Immune Support.’ But a close review of the ingredients, in tiny letters on the back, reveals that NutriProtect™ advertising is deceptive, leading parents to believe the Products are healthier and more nutritious than they actually are.” Marron claims that some of the products “contain high amounts of sugar, salt, and high fructose corn syrup.” He also indicates that Gerber is adding substances such as DHA to its products at a price premium, when parents could simply add a few drops of tuna oil to their baby’s food to obtain the same purported health effects. Also cited as a questionable practice is the company’s addition of prebiotics and…
A U.K.-based public interest charity has filed 54 separate complaints with the Advertising Standards Authority (ASA) contending that the subject companies, including Cadbury and Pringles, are promoting food products high in sugars, fat or salt to children online. Described by the Children’s Food Campaign (CFC) as a “super complaint,” the case reflects the findings of a report the charity released in December 2011 claiming that food advertisers use brand characters, animations, games, competitions, and videos online and through social media to heavily market junk food to children. It calls for the U.K. government to close a loophole allowing ads for products that cannot be aired during children’s programming to be freely promoted online. According to CFC spokesperson Malcolm Clark, youth marketing standards applicable to TV should be matched online. The existing code apparently states, “marketing communications must not condone or encourage poor nutritional habits or an unhealthy lifestyle in children.”…
The Natural Resources Defense Council (NRDC) has filed a complaint in a New York federal court seeking an order that would require the U.S. Department of Agriculture (USDA) to respond to the organization’s request under the Freedom of Information Act (FOIA) for documents on “the agency’s proposed deregulation of herbicide-resistant crops.” NRDC v. USDA, No. 12-0795 (S.D.N.Y., filed February 6, 2012). According to the complaint, USDA “is currently considering petitions to deregulate several herbicide-resistant varieties of corn and soybeans, which, if granted, would significantly increase usage of the herbicides to which those genetically modified [GM] crops are resistant.” NRDC apparently submitted a FOIA request to USDA in October 2011, seeking records concerning the proposed agency action, as well as a “fee waiver on the grounds that disclosure of the requested information is in the public interest.” The deadline for a response, according to NRDC, was November 15, but USDA has…
