According to a news source, the New York Court of Appeals, the state’s highest court, has agreed to hear New York City’s appeal of a decision striking down a board of health rule that would have imposed caps on the size of sugar-sweetened beverages sold at certain venues. Details about the intermediate appellate court opinion affirming a lower court’s invalidation of the rule under separation-of-powers principles appear in Issue 492 of this Update. Mayor Michael Bloomberg responded to the court’s ruling by stating, “The related epidemics of obesity and diabetes are killing at least 5,000 New Yorkers a year and striking hardest in black and Latino communities and low-income neighborhoods. New York City’s portion cap rule would help save lives, and we are confident the appeals court will uphold the Board of Health’s rule.” The case is expected to be argued after January 1, 2014. See Law360, October 17, 2013.…
Category Archives State Courts
A California state court has denied the defendant’s request that it stay a case alleging that the company failed to warn consumers of the presence of lead in its snack bars in contravention of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Envtl. Research Ctr., Inc. v. Clif Bar & Co., No. 13-532935 (Cal. Super. Ct., San Francisco Cty., minutes entered October 16, 2013). Additional details about the suit appear in Issue 492 of this Update. Clif Bar & Co. sought the stay pending the outcome of an appeal from an August 2013 determination that Dole Food Co., Gerber Products Co. and other food makers were not required to warn consumers about lead occurring naturally in their products at levels lower than the state threshold. According to the company, it would waste time and money to proceed in a case that has already cost millions to…
A California appeals court has affirmed the dismissal with prejudice of a putative class action alleging that Kroger Corp. misled consumers by failing to comply with federal and state law requirements for labeling its Challenge® spreadable butter products. Simpson v. The Kroger Corp., No. B242405 (Cal. App. Ct., decided September 25, 2013). The court found that the labeling requirements of the state Milk and Milk Products Act of 1947 were not identical to federal labeling requirements, and thus claims based on the Act were preempted. And while the court found that the plaintiff’s mislabeling claims under the state Sherman Food, Drug and Cosmetic Law were not preempted, it ruled that the trial court did not abuse its discretion in denying leave to amend the complaint, because “as a matter of law, plaintiff has failed to demonstrate that a reasonable consumer would be misled by the labels on the products.” Noting…
An Illinois appeals court has reversed a trial court determination that Illinois would not be an inconvenient forum for the defendants in a wrongful death lawsuit filed by the parents of a 15-year-old boy who allegedly drank two cans of the alcohol energy drink Four Loko and was killed on a Virginia highway after becoming disoriented. Rupp v. Phusion Projects, LLC, No. 1-12-2056 (Ill. App. Ct., order entered September 27, 2013) (not precedential). Additional information about the lawsuit appears in Issue 395 of this Update. According to the appeals court, while the trial court correctly weighed most of the private-interest factors presented, it should have considered the defendant’s choice-of-law issue under the public-interest factor analysis. The appeals court also found that the trial court erred in stating that other defendants had not joined Phusion’s forum non conveniens motion, because the record showed that they had done so. And finally, the…
California’s pesticide regulator has reportedly filed a petition against Whole Foods alleging that several of its pet products, including cat litter and dog and cat flea spray, contain pesticides that have not been registered with the state. Cal. Dep’t of Pesticide Registration v. Whole Foods Mkt. Cal., Inc., No. 2013-00150499 (Cal. Super. Ct., Sacramento Cty., filed September 9, 2013). State law evidently requires pre approval of pesticide products so they can be tested and approved for safe use. The company is reportedly cooperating with the state and has indicated that it “looks forward to addressing the matter before a judge.” If Whole Foods has violated state law, California may impose fines. According to an agency spokesperson, failure to register pesticide products has been an ongoing issue with the Austin-based retail grocery chain and the agency intends to investigate it for a range of purportedly unregistered products. See Huffington Post, September…
A former non-exempt Anheuser-Busch brewery worker in California has filed a putative class action against the company alleging that it violated the state labor code by failing to include the value of free or discounted beer—termed “incentive pay”—in employees’ regular pay rates and thus undercompensated them by calculating overtime pay on the basis of pay rates that were too low. Controulis v. Anheuser-Busch, LLC, No. BC518518 (Cal. Super. Ct., Los Angeles Cty., filed August 16, 2013). The plaintiff also claims that the company failed to timely provide a final paycheck when employees were discharged or quit. According to the complaint, the plaintiff was terminated during the year preceding the complaint’s filing while he was on a leave of absence. Seeking to certify several classes of California employees, the plaintiff alleges failure to pay overtime wages, wage statement violations, waiting time penalties, unfair competition (that is, by underpaying its employees, the…
New York City has filed an appeal from an intermediate appellate court ruling finding that the city Board of Health exceeded its authority by adopting a regulation restricting the size of sugar-sweetened soft drinks sold in certain venues. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dep’t of Health & Mental Hygiene, No. ___ (N.Y., appeal filed August 2, 2013). Details about the intermediate appellate court decision appear in Issue 492 of this Update. According to the city’s motion for leave to appeal, the Court of Appeals erred in (i) applying separation-of-powers doctrine to a local administrative agency; the city argues that municipalities determine their governmental structure and often create bodies with overlapping powers; (ii) ruling that the Board of Health lacks legislative powers when it derives its authority from charters explicitly recognizing those powers, and case law has defined the board as “the sole legislative authority within the City…
Applying separation-of-power principles that defeated a state administrative body’s effort to regulate smoking in public places, Boreali v. Axelrod, 71 N.Y.2d 1 (N.Y. 1987), a New York appeals court has affirmed a lower court ruling invalidating the “Portion Cap Rule” promulgated by the New York City Department of Health and Mental Hygiene (Department). In re N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dept. of Health & Mental Hygiene, No. 2013 NY Slip Op. 05505 (N.Y. App. Div., decided July 30, 2013). The rule would have limited the sale of certain sugary soft drinks to 16 ounces in food service establishments over which the Department has authority under a memorandum of understanding with the state’s Department of Agriculture and Marketing. Thus the rule would have applied to restaurants, delis, fast-food franchises, movie theaters, stadiums, and street carts, but not to grocery stores, convenience stores, corner markets, gas stations, and…
According to a news source, upscale Rodeo Drive sushi restaurant Urasawa has been sued by former employees who claim they were forbidden from taking breaks and were not paid the overtime they worked. Apparently, a California Labor Department investigation has confirmed the complaints targeting chef and owner, Hiroyuki Urasawa, whose menu includes dishes served with caviar and 24-karat gold flakes and can cost a couple in excess of $1,000. Among those seeking back wages is Heriberto Zamora, who was reportedly forced to buy his own $700 set of knives when he was earning just $9 per hour. Zamora claims he was fired nine hours into his shift when he asked to go home with a fever and cough. See The New York Times, July 20, 2013.
To settle litigation filed in 2007 by environmental and union interests, California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has agreed to a number of actions that would remove certain steps from the Proposition 65 (Prop. 65) chemical-listing process that would accelerate the listings. Sierra Club v. Brown, No. RG07356881 (Cal. Super. Ct., settlement endorsed July 3, 2013). The agreement will affect OEHHA’s authoritative bodies listings as to specific chemicals and its Carcinogen Identification Committee listings. Not affected by the agreement, and yet to be determined by the court, is the plaintiffs’ motion for judgment on the pleadings requiring OEHHA to list all International Agency for Research on Cancer (IARC) Group 3 chemicals for which IARC finds sufficient evidence of carcinogenicity in animals. According to a news source, the court will hold a hearing to consider whether to approve the agreement on August 15, 2013. See InsideEPA.com, July 25,…
