A California court has determined that California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) complied with the law in determining that 4-methylimidazole (4-MEI), a chemical present in many common foods and beverages, is a carcinogen known to the state to cause cancer. Cal. League of Food Processors v. OEHHA, No. 34-2011-80000784 (Cal. Super. Ct., decided November 21, 2011). As noted by the court, “The chemical is used in the manufacture of various products like pharmaceuticals, and it is a by-product of fermentation found in food products like soy sauce, roasted coffee, and caramel coloring added to colas and beer.” A number of trade associations representing an array of food and beverage interests challenged the listing, which will require product warnings under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). They claimed that OEHHA’s reliance on a National Technology Program technical report on 4-MEI did…
Category Archives Litigation
After Vermont-based folk artist Bo Muller-Moore decided to apply for a federal trademark to protect his “Eat More Kale” T-shirt design, fast food chain Chick-fil-A reportedly accused him of infringing its “Eat Mor Chikin” trademark. The kale design has apparently caught on with consumers, who pay $25 each for the T-shirts and have purchased a sufficient quantity for Muller-Moore to support his family. With powerful allies such as Vermont Governor Peter Shumlin (D), who reportedly said, “Don’t mess with Vermont. Don’t mess with kale. And Chick-fil-A, get out of the way because we are going to win this one,” Muller-Moore has vowed to defend the claim. Publicity about the fracas has apparently generated a rash of sales, which Chick-fil-A hopes to stop; the company has also apparently sought an order requiring Muller-Moore to turn over his website, eatmorekale.com. See NPR.org, December 6, 2011.
A New Mexico resident has filed a putative statewide class action in federal court claiming that a company which makes one-cup coffee cartridges for Keurig® single-serve coffee machines falsely labels and markets its cartridges as fresh coffee when they are actually filled with instant coffee. Bracewell v. Sturm Foods, Inc., No. 11-01024 (D.N.M., filed November 18, 2011). Alleging violations of New Mexico and Illinois consumer fraud laws and unjust enrichment, the plaintiff seeks statutory damages, injunctive relief, attorney’s fees, and costs.
A Nebraska resident alleging that his consumption of Listeria-contaminated cantaloupe grown by Jensen Farms in Colorado caused his infection and subsequent hospitalization, has filed a personal injury action against the grower, distributor, retailer, and the company hired by the grower to conduct a food safety audit before the outbreak. Braddock v. Jensen Farms, No. 11-402 (D. Neb., filed November 30, 2011). According to the complaint, Primus Group, Inc. was negligent in performing the audit and failing to detect Listeria or conditions leading to Listeria contamination at the grower’s facilities and, in breaching its contract with the grower, harmed the plaintiff, a third-party beneficiary. The plaintiff also alleges strict product liability, breach of warranty, negligence, and negligence per se against the other defendants and seeks general, special and incidental damages.
A federal court in Florida has redefined a plaintiffs’ class in deceptive advertising litigation against the company that claims its Yo-Plus® yogurt provides digestive health benefits. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., order entered December 2, 2011). While the Eleventh Circuit Court of Appeals upheld the class certification decision, it remanded the case for the lower court to redefine the class to omit any reference to plaintiffs’ reliance on company claims, which reliance need not be proved under the Florida Deceptive and Unfair Trade Practices Act. Additional information about the Eleventh Circuit ruling appears in Issue 388 of this Update. The class will now be defined as “all persons who purchased Yo-Plus in the State of Florida until the date notice is first provided to the class.”
According to a news source, the company that makes the hazelnut spread Nutella®, which is advertised as part of a healthy breakfast for children, has reached a settlement in the class action certified by a federal court in California last month. In re Ferrero Litig., No. 11-205 (S.D. Cal., minute entry November 28, 2011). A docket notation reportedly indicates that the parties settled the claims during a November 28, 2011, mandatory settlement conference and will “submit a joint motion for preliminary approval of the class settlement no later than December 19, 2011.” Additional details about the court’s class certification order appear in Issue 418 of this Update. The plaintiffs had alleged that the product contains “dangerous levels of fat and sugar.” See BNA Product Safety & Liability Reporter, December 5, 2011.
According to a news source, Pom Wonderful LLC, which was seeking $18.1 million in lost sales from Ocean Spray Cranberries Inc. for falsely selling a pomegranate juice product with just trace amounts of pomegranate juice, lost its case following less than two hours’ deliberation by a federal jury. Pom Wonderful LLC V. Ocean Spray Cranberries Inc., No. 09-00565 (C.D. Cal., verdict reached December 6, 2011). The trial apparently became a battle of experts who cited conflicting statistics on whether Ocean Spray misled consumers about the quantity of pomegranate juice in its Cranberry & Pomegranate® juice blend, which evidently contains mostly grape and apple juice. Pom Wonderful sought to show that Ocean Spray took advantage of Pom’s extensive medical research into the purported health benefits of pomegranate juice. The company has reportedly lost two other consumer deception cases filed against Welch Foods Inc. and Tropicana Products Inc. See The National Law…
The First Circuit Court of Appeals has determined that, while Dominican Republic plantation owner executives are limited-purpose public figures for purposes of a defamation lawsuit involving a documentary film critical of their operations, the district court erred in denying a motion to compel the disclosure of documents that could pertain to actual malice. Lluberes v. Uncommon Productions, LLC, No. 10-2082 (1st Cir., decided November 23, 2011). So ruling, the court affirmed in part but vacated the district court’s grant of summary judgment and remanded the case for a review of the purported privileged documents in camera, if necessary, and a determination as to whether sufficient evidence of actual malice has been shown. The film apparently focused on living conditions in the company towns in which the plantation workers live and identified the plaintiffs “as bearing some measure of responsibility for their disrepair.” The plaintiffs argued on appeal that they were not…
A World Trade Organization (WTO) panel has issued a ruling against the United States in a dispute with Mexico and Canada over country-of-origin labeling (COOL) regulations for beef and pork products. According to the November 18, 2011, panel report, Canada and Mexico filed complaints arguing that U.S. COOL regulations enacted in 2008 afford “imported livestock treatment less favorable than that accorded to like domestic livestock.” In addition to labeling requirements, the regulations evidently required the segregation of imported livestock before processing, as well as ear tags certifying that the cattle are free of bovine spongiform encephalopathy. Although the WTO panel reportedly affirmed the right of the United States to enact COOL regulations, it found that the specific requirements provided less favorable treatment to Canadian and Mexican livestock. “Additionally, the panel determined that the U.S. COOL requirements fail to fulfill their consumer information objective because the information included on the labels…
A federal judge in California has reportedly dismissed a putative class action against the manufacturer of melatonin-laced brownies marketed as a relaxation and sleep aid. According to media sources, the plaintiff alleged that HBB LLC failed to disclose the potential effects of its Lazy Larry® or Lazy Cakes® baked goods, including “extreme fatigue, exhaustion and slurred speech.” The products have also come under fire from lawmakers and the Food and Drug Administration, which in August 2011 warned the company that the brownies were adulterated under federal law. Despite the ongoing debate over whether the brownies are conventional food or a dietary supplement, U.S. District Judge Manuel Real concluded that the product packaging adequately displayed its contents. “It is undisputed that the packaging on the product accurately disclosed the quantity of melatonin in each serving as well as the relevant serving size [and] that the product contained a disclaimer of the…
