A consumer supported by the Center for Science in the Public Interest (CSPI) has reportedly filed a putative class action in New Jersey Superior Court, alleging that meals he purchased at Denny’s® restaurants contained “alarmingly large and undisclosed amounts of sodium.” DeBenedetto v. Denny’s Corp., No. ___ (N.J. Super. Ct., filed July 23, 2009). At issue are menu items such as Moons Over My Hammy, Spicy Buffalo Chicken Melt and Meat Lover’s Scramble, which purportedly contain sodium levels that exceed the daily recommended limit of 1,500 mg. According to the complaint, “Denny’s menu deceptively presents various items as single meals to be consumed by one individual without disclosing that they contain substantially more sodium (in some case two or three times more) than the maximum recommended amount for all meals consumed by an individual during the day.” The class action “seeks to compel Denny’s restaurants to disclose on menus the…
Category Archives Litigation
A trade group representing bottled water producers, distributors and suppliers has filed a lawsuit in federal court against Eco Canteen Inc., a stainless steel bottle manufacturer, “for engaging in a deliberate scare campaign to mislead and deceive the public” about the purported health and environmental risks associated with plastic bottle use. Int'l Bottled Water Ass'n v. Eco Canteen Inc., 09-299 (W.D.N.C., filed July 22, 2009). According to the International Bottled Water Association (IBWA), Eco Canteen has made several false and misleading claims about both single-serve and reusable plastic bottles that included likening these products to poison and linking them to breast and prostate cancer. This “viral” marketing campaign was allegedly designed “to be picked up and disseminated by third parties” despite IBWA’s repeated requests for corrective action. The complaint also notes that the defendant “purposefully matches images of single-serve recyclable plastic bottles with its claims relating to an organic compound…
The Iowa Supreme Court has awarded disability benefits to a former slaughterhouse worker who allegedly contracted brucellosis from butchering hogs. IBP, Inc. v. Burress, No. 07-1887 (Iowa, decided July 10, 2009). The court determined that the disease was caused by a traumatic event and thus was a compensable injury under state law. So ruling, the court affirmed an intermediate appellate court decision rejecting a district court’s determination that the claimant had an occupational disease and failed to timely file his workers’ compensation petition. The court discusses in some detail how the claimant came into contact with Brucella organisms through open cuts while exposed to hog blood during his 10-year tenure at IBP, Inc.’s meat-packing plant. He allegedly developed a chronic infection of the hips and bone as a result of his contact with blood products and tissue from slaughtered hogs, but was not apparently diagnosed with the disease until some six years…
Acting on behalf of an apparently energized Food and Drug Administration (FDA), the Department of Justice (DOJ) has filed a complaint for injunction against a New Jersey company and its owner seeking to halt the manufacture and sale of their dietary supplement products, in part, for failure to comply with good manufacturing practice requirements. U.S. v. Quality Formulation Labs., Inc., No. 09-03211 (D.N.J., filed July 1, 2009). The complaint alleges that the defendants have caused their protein powders and other dietary supplements to be adulterated “in that they have been prepared, packed, or held under insanitary conditions whereby they may have become contaminated with filth (as a result of rodent activity) or may have been rendered injurious to health (as a result of cross-contamination with a major food allergen).” The allergen at issue is milk. The complaint also alleges that one of the defendants’ articles of food is adulterated “in…
Responding to questions referred to it by an Italian court, the European Court of Justice (ECJ) has determined that (i) the term “Bavaria,” when used in conjunction with beer, is not a generic term, but rather is a protected geographical indication (PGI) recognized in valid proceedings by the European Commission in 2001; and (ii) beer makers outside the German region, using this designation for their products, may do so if they can prove their trademarks were registered in good faith before 2001 and will not likely confuse consumers as to product identity, “having regard to that mark’s reputation, renown and the length of time for which it has been used.” Bavaria NV v. Bayerischer Brauerbund eV, No. C-343/07 (decided July 2, 2009). German brewers have apparently been challenging Dutch brewer Bavaria NV in courts throughout the continent, including in Italy where the case has been returned for the Dutch brewer to prove that…
The Department of Justice (DOJ) is seeking to enjoin the operation of a cheese-processing facility in New York due to the Listeria monocytogene (L. mono) contamination of its Queso Hebra, Queso Fresco and Queso Cotija Molido cheeses. U.S. v. Peregrina Cheese, Inc., No. 09-2888 (E.D.N.Y., filed July 7, 2009). According to DOJ, state and federal inspections of the facility since at least 2004 have revealed serious sanitation problems. Because product samples and equipment surfaces tested positive for the same L. mono strain, Food and Drug Administration (FDA) analysts concluded that “the strain has formed a niche at Peregrina Cheese’s facility.” The owners have apparently refused to shut down the plant to properly sanitize it, claiming that the state food safety agency approved the “use of an antimicrobial agent as an additive in Peregrina Cheese’s Queso Fresco product.” The owners did not, however, provide “any information as to the level of use”…
A federal court in the District of Columbia has ordered the Environmental Protection Agency (EPA) to produce certain records about the pesticide clothianidin and lists of potentially protected documents to the Natural Resources Defense Council, which sought the information under a Freedom of Information Act Request submitted in July 2008. Natural Resources Defense Council v. EPA, No. 08-1429 (D.D.C., decided June 23, 2009). According to the court, the information related to “the use of the pesticide clothianidin on crops in the United States, EPA’s evaluation of the safety of the pesticide on bees, studies submitted by chemical manufacturers relating to the toxicity of the pesticide to bees, and communications with other federal or foreign agencies regarding environmental risks posed by the pesticide.” The day before the court filed its ruling establishing a schedule for the document production, EPA announced that it had developed a “pollinator protection strategic plan.” The plan, created…
Multidistrict litigation plaintiffs who sued Aurora Dairy Corp., an accredited organic certifying agent and a number of food retailers have appealed the district court decision dismissing their claims to the Eighth Circuit Court of Appeals. In re: Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., MDL No. 08-1907 (E.D. Mo., appeal noticed July 2, 2009). As noted in the June 5, 2009, issue of this Update, the district court concluded that the claims, which involved allegations that Aurora Dairy sold its milk as organic while violating national organic program requirements, were preempted by federal law and regulations. In their list of issues on appeal, the plaintiffs question the validity of this determination.
In September 2008, a divided panel of the Ninth Circuit Court of Appeals upheld the injunction imposed by a district court on the sale of Monsanto’s Roundup Ready® alfalfa until the U.S. Department of Agriculture (USDA) completes an environmental impact statement under the National Environmental Policy Act. Additional details about the court’s ruling appear in issue 274 of this Update. The appeals court has now issued an amended opinion indicating that the petition for panel rehearing and for rehearing en banc have been denied. Geertson Seed Farms v. Johanns, No. 07-16458 (9th Cir., decided June 24, 2009). Thus, unless the government or Monsanto Co. successfully appeals the matter to the U.S. Supreme Court, the company will be unable to sell its genetically modified seeds until the USDA prepares a study on how the crop could affect neighboring crops. A spokesperson for the Center for Food Safety, one of the plaintiffs…
A putative class action has been filed in a federal court in California against the company that makes Redline® beverages and supplements, alleging that some of the ingredients cause “effects that go beyond the Product’s goal of energy enhancement and weight loss.” Aaronson v. Vital Pharms., Inc., No. 09-1333 (S.D. Cal., filed June 19, 2009). While the product labels apparently warn consumers about potential effects such as rapid heartbeat, dizziness, headache, and shortness of breath, the named plaintiff contends that the warnings are inadequate. According to the complaint, the defendant markets the product as a drug without having obtained Food and Drug Administration approval. Alleging violations of California consumer protection laws, fraudulent concealment, breach of express and implied warranties, negligence, and design and manufacturing defects, the plaintiff seeks to certify a nationwide class of product purchasers. The plaintiff also asks the court to enjoin the defendant’s deceptive marketing and award actual…
