The Washington Department of Ecology has reportedly fined Cooke Aquaculture $332,000 for violations of state water quality laws related to a net pen failure that released approximately 250,000 farmed Atlantic salmon into Puget Sound. Cooke initially blamed the failure on high tides coinciding with the August 2017 solar eclipse; state investigators determined that the pen collapsed because the company failed to clean and maintain the nets, reportedly finding that they were covered with more than 110 tons of mussels, clams and other marine organisms that increased tidal drag and overwhelmed the mooring systems. The state reports that about 57,000 of the escaped fish have been captured. Before the Puget Sound farm collapsed, Cooke reportedly applied to build a salmon farm in Washington’s Strait of Juan de Fuca. The state has terminated Cooke’s leases for both the Puget Sound location and a second location in Port Angeles and placed a moratorium on…
The Food Safety and Inspection Service (FSIS) of the U.S. Department of Agriculture has denied a petition from the National Chicken Council seeking to waive the line speed limit of 140 birds per minute in processing plants. FSIS told the council that processors of young chicken are permitted to run at higher speeds if they were one of 20 participants in a New Poultry Inspection System pilot study operating under a Salmonella Initiative Program (SIP) waiver. During the pilot program, participants demonstrated that they could maintain process control at line speeds up to 175 birds per minute and were capable of "consistently producing safe, wholesome and unadulterated product" and "meeting pathogen reduction and other performance standards.” The agency's letter indicated that it would consider granting additional SIP waivers but would not grant waivers that would allow processors to operate without maximum line speeds.
A California federal court has refused to dismiss a trademark infringement and right of publicity lawsuit filed by the estate of Thelonious Monk against a craft brewery selling “Brother Thelonious Belgian Style Abbey Ale,” finding the estate sufficiently pleaded all causes of action. Monk v. North Coast Brewing Co., No. 17-5015 (N.D. Cal., entered January 31, 2018). Monk’s son had agreed to allow North Coast Brewing Co. to use the musician’s name, likeness and image on the ale in exchange for the brewery’s donation of a portion of the profits to the Thelonious Monk Institute of Jazz, but he allegedly revoked his consent because the brewer extended the use to apparel and other merchandise. The court found plausible that the estate had a protectable interest in Monk’s name, image and likeness and that it had alleged enough facts to support a possible finding of likelihood of confusion. Although it noted…
A California federal court has ruled that plaintiffs alleging they might purchase Carrington Tea Co.'s coconut oil products in the future have established standing sufficient to withstand a motion to dismiss. Zemola v. Carrington Tea Co., LLC, No. 17-0760 (S.D. Cal., entered January 24, 2018). The court had previously determined that the plaintiffs lacked standing to pursue an injunction because they failed to allege they would purchase the products in the future, but the U.S. Court of Appeals for the Ninth Circuit later ruled in an unrelated case that plaintiffs can seek injunctions if they plausibly allege that they "will be unable to rely on the product’s advertising or labeling in the future, and so will not purchase the product in the future,” or that they "reasonably, but incorrectly" assume that the product had been improved. Because one plaintiff alleged that he would like to purchase Carrington’s products in the…
Barcel USA, maker of Takis chips, faces a putative class action filed by a plaintiff alleging that four-ounce bags of Zombie and Guacamole tortilla chips contain as much as 64 percent nonfunctional slack-fill. Morrison v. Barcel USA, LLC, No. 18-531 (S.D.N.Y., filed January 22, 2018). The plaintiff compared the Takis bags to similarly sized bags of Doritos chips, which allegedly contain 33 percent slack fill. She alleges that her economic injury was equivalent to the proportion of the purchase price she paid for the slack-fill. Claiming deceptive and unfair trade practices, false advertising and common-law fraud, the plaintiff seeks class certification, injunctive relief, restitution, disgorgement, damages, corrective advertising and attorney’s fees.
A consumer has filed a putative class action alleging PVK Inc. mislabels Scarpetta pasta sauces as containing “No Preservatives” despite including citric acid on the ingredient list. Jocelyn v. PVK Inc., No. 18-427 (E.D.N.Y., filed January 22, 2018). The plaintiff alleges that she relied on the representation on the container and would not have purchased the sauce had she known it contained preservatives. Claiming deceptive and unfair trade practices, false advertising and common-law fraud, the plaintiff seeks class certification, injunctive relief, restitution, disgorgement, damages, corrective advertising and attorney’s fees.
One day after the U.S. Food and Drug Administration (FDA) issued draft guidance on proposals to expedite product warnings and recalls, FDA and other health officials testified before the House Subcommittee on Oversight and Investigations about the results of an audit faulting the agency for the failure of the recall process to ensure food safety. Conducted by the Office of Inspector General of the Department of Health and Human Services, the audit identified a two-month average delay between when FDA notified companies of issues and when companies took action. During the hearing, Rep. Greg Walden (R-Ore.) reportedly displayed a snack container he had brought to a 2009 hearing on a nationwide Salmonella outbreak traced to products manufactured by the Peanut Corp. of America (PCA). PCA executives are serving federal prison terms for their roles in the outbreak, and a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit…
Panera Bread has reportedly petitioned the U.S. Food and Drug Administration (FDA) to establish a clear definition of the term “egg” after learning that agency rules dictate that “no regulation shall be promulgated” to define eggs. The company asserts that under existing regulations, restaurants can sell processed substances containing artificial flavorings, gums, coloring and fillers as "eggs." Panera’s director of wellness and food policy said in a press release, “Panera and our competitors use the FDA definitions to guide our product descriptions and names. But in the case of ‘eggs,’ we have no guidance. Brands can say they offer an egg sandwich, but sell an egg product that contains multiple additives.”
An Illinois federal court has dismissed a franchisee’s lawsuit alleging KFC wrongfully prevented him from advertising halal chicken, finding the franchise contract gave KFC control over advertising and promotional material. Lokhandwala v. KFC Corp., No. 17-5394 (N.D. Ill., entered January 23, 2018). Although the plaintiff alleged that KFC's prohibition on advertising dietary claims contradicted the earlier representations KFC had made to him, the court found that the franchise agreement gave KFC express power to change its advertising policies. In particular, the contract stated that “[n]o failure, forbearance, neglect or delay of any kind or extent on the part of KFC in connection” with enforcing and exercising its rights “shall affect or diminish KFC’s right to strictly enforce . . . this Agreement at any time.” The court ruled that given the contract’s “unambiguous language on advertising” as well as its integration clause, it would not consider extrinsic evidence of KFC’s…
A New York federal court has held that a vegetarian who alleged Buffalo Wild Wings charged a premium price for non-meat food items fried in beef tallow failed to plead any injury in her complaint because loss of the purchase price does not constitute “actual injury” under state consumer-protection law. Borenkoff v. Buffalo Wild Wings, No. 16-8532 (S.D.N.Y., entered January 19, 2018). Although it was a “close call,” the court held that the plaintiff had standing to sue, finding “some ‘concrete and particularized’ injury in paying for one item and receiving another, even if you ultimately receive the ‘benefit of your bargain’ from a purely objective economic standpoint.” However, the alleged economic injury was insufficient to state a claim, the court held, because the plaintiff failed to explain “exactly how” the cost of the food was affected by the use of beef tallow or why she believed she paid a premium.…
