The United States has reportedly decided not to file an appeal from a World Trade Organization (WTO) ruling that its ban on Chinese poultry imports, imposed in 2004 upon fears of an avian flu outbreak, was illegal. According to a news source, this ends the trade dispute. While the legislative ban expired within five years, under current U.S. law, the U.S. Department of Agriculture cannot allow poultry imports unless the foreign country’s food safety procedures are deemed equivalent to those used in the United States. A 2009 appropriations bill included this provision despite lobbying by U.S. trade organizations against it. See FoodNavigator-USA.com, October 27, 2010. Meanwhile, WTO has apparently decided to open to the public the second hearing on a complaint filed by Canada and Mexico, challenging the U.S. promulgation of country-of-origin labeling for cattle and hog imports. The parties reportedly requested an open hearing, which will take place December…
Category Archives Litigation
Public Employees for Environmental Responsibility (PEER) has filed a complaint in federal court under the Freedom of Information Act (FOIA), seeking documents from the White House Office of Science and Technology Policy (OSTP) related to the development of policies to protect scientific integrity in federal agencies, such as the U.S. Department of Agriculture and the Food and Drug Administration. PEER v. OSTP, No. __ (D.D.C., filed October 19, 2010). According to the complaint, President Barack Obama (D) issued an executive order in March 2009, requiring the development of such rules by July. They have not yet been promulgated. OSTP Director John Holdren reportedly wrote online in June 2010 that the “process has been more laborious and time-consuming than expected,” and that an interagency panel has developed draft recommendations for OSTP and Office of Management and Budget review. Representatives from the latter two offices “have been honing a final set of recommendations”…
A California resident has filed a putative class action against the company that owns the Breyers ice cream brand, alleging violations of consumer protection laws because its 23 chocolate-flavored products are labeled “All Natural” but also contain cocoa processed with alkali. Denmon-Clark v. Conopco, Inc., No. 10-7898 (C.D. Cal., filed October 20, 2010). According to the complaint, “Breyers Ice Cream products containing alkalized cocoa are processed with potassium carbonate which is a recognized synthetic substance.” While acknowledging that the Food and Drug Administration (FDA) does not directly regulate the use of the term “natural,” the plaintiff alleges that the agency has a policy that defines “the outer boundaries of the use of that term” and clarifies that “a product is not natural if it contains color, artificial flavors, or synthetic substances.” The plaintiff alleges that FDA requires products made with an “alkalization” process to include the statement “Processed with alkali.” Breyers’ website…
According to a news source, an appellate lawyer in California has submitted an amicus brief to the Ninth Circuit Court of Appeals, claiming that the state’s ballot initiative process, adopted 99 years ago, was improperly voted into law. He has asked the court to certify the question to the California Supreme Court. This issue arose in a case involving the validity of Proposition 8, a voter-approved ballot measure that banned same-sex marriage. A federal district court ruled that Proposition 8 violates the U.S. Constitution. If the process that led to the adoption of Proposition 8 is ultimately overturned, it could call into question the validity of Proposition 65, which has required manufacturers and retailers to warn consumers if their products contain chemicals known to the state to cause cancer or reproductive harm. The state has been considering in recent months how to effectively apply the law to the food industry.…
A judge from the U.S. Court of International Trade, sitting by designation in a New York federal district court, has determined that the obesity-related claims filed in 2002 against McDonald’s Corp. cannot be pursued as a class action. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., decided October 27, 2010). Essentially, the court found that individual causation issues predominated over common ones and that, as to any common issues, the plaintiffs had failed to show that the putative class was sufficiently numerous for the court to certify an issues class. A spokesperson reportedly indicated that the company was pleased with the decision, stating, “As we have maintained throughout these proceedings, it is unfair to blame McDonald’s for this complex social problem.” Teenagers alleging obesity-related health problems claimed that they were misled by the fast food chain’s deceptive advertising into believing that the food could be consumed daily without any adverse health effects.…
An appeals court in New Mexico has affirmed a trial court’s decision to dismiss claims that a horse rancher’s family became ill as a result of exposure to horse feed containing an antibiotic toxic to horses. Parkhill v. Alderman-Cave Milling & Grain Co., No. 29,120 (N. M. Ct. App., decided October 6, 2010). The parties settled claims that the feed sickened or killed horses from several of the plaintiffs’ horse ranches, and the trial court dismissed claims, as a sanction for discovery abuse, that the family’s personal health was affected by exposure to the feed. The appeals court did not reach the sanctions issue, finding that the lower court properly excluded the testimony of the plaintiffs’ experts. The toxin involved was monensin, an antibiotic that is a common additive to feed for livestock, but prohibited in horse feed. The plaintiffs alleged that immediately after contact with the feed they developed skin…
A federal court in New Jersey has granted the defendant’s unopposed motion to extinguish the stay in a lawsuit contending that Snapple beverage products are falsely advertised as “natural” because they contain high-fructose corn syrup, a purportedly non-natural ingredient. Holk v. Snapple Beverage Corp., No. 07-3018 (D.N.J., decided October 15, 2010) (unpublished). The court had stayed the litigation pending the Food and Drug Administration (FDA) reaching a decision about the definition of “natural.” According to the court’s order, “The FDA in response has declined to address that issue.” Noting that another district court in New Jersey has lifted a stay imposed for the same reason in similar litigation (Coyle v. Hornell Brewing Co.), the court agreed to reopen the case, but refused to reinstate the motions that were pending when the case was “administratively terminated.” The court ordered the parties “to move again, upon new notices of motion and in accordance with…
A federal court in California has dismissed on preemption and standing grounds a number of state-law claims against The Quaker Oats Co. in a lawsuit alleging that the company falsely advertises its Chewy Bars® as containing “0 grams trans fat” when the ingredient list labeling includes hydrogenated vegetable oil. Chacanaca v. The Quaker Oats Co., No. 10-0502 (N.D. Cal., decided October 14, 2010). So ruling, the court lifted a discovery stay order and scheduled a case management conference for December 16, 2010. The defendant sought judgment on the pleadings at the outset of the action, arguing that “the doctrines of express preemption, primary jurisdiction, and Article III standing warrant immediate dismissal of the entire case.” The court agreed to dismiss all state-law deception claims involving the “0 grams trans fat” statement, the “good source” of calcium and fiber statements and a statement that the product contains whole grain oats but lacks…
Twenty-seven waiters, busboys and others at New York City’s Del Posto restaurant have reportedly filed a lawsuit against owner Mario Batali and partners Joseph and Lidia Bastianich, claiming that they were not paid a legal wage. The plaintiffs allege that the restaurant’s managers pooled workers’ tips in violation of state labor laws and wrongfully withheld a portion of the gratuities on wine and cheese sales. The tip pool was allegedly divided on the basis of a point system, and the plaintiffs also reportedly contend that staff working banquets did not get their proper share of the service charge billed to customers, instead receiving a flat fee. The suit, which is at least the third involving a Batali-owned facility, seeks back pay, unspecified damages and attorney’s fees. See msnbc.com, October 12, 2010.
A federal court in California has approved a motion for preliminary approval of a class action settlement in litigation involving allegedly fraudulent claims that Kellogg Co.’s Frosted Mini-Wheats® cereal “was clinically shown to improve children’s attentiveness by nearly 20%.” Dennis v. Kellogg Co., No. 09-1786 (S.D. Cal., decided October 14, 2010). The settlement class consists of everyone in the United States who bought the product between January 2008 and October 2009. The company has agreed to create a $2.75 million fund “to provide cash payments to class members who submit valid Claim Forms. Class members may recover the full purchase price of the cereal they purchased ($5 per box), up to three boxes.” Any funds remaining will be “distributed to appropriate charities pursuant to the cy pres doctrine.” The company will also distribute specified food items valued at $5.5 million to charities feeding the indigent and will pay the costs of…
