By Shook Of Counsel Brandon Arber The Massachusetts Supreme Judicial Court has affirmed a lower court's grant of a mistrial in Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc. This was a bone-in-the-hamburger case, causing a broken tooth and multiple surgeries. The lower court had found that the plaintiff's counsel used “so-called 'reptile' litigation tactics" in the closing, including: "But you know what, when Wendy's and JBS sells all those burgers, they are more than happy to take our money. We pay for the burger. It goes to them. But when a burger hurts somebody, no responsibility. No accountability. Shame on them, honestly—shame on them.” "Are these important rules in our community? Are we going to enforce them? Are you going to enforce them? If the rules that we talked about here, the safety rules, if those are important you need to speak to that and your verdict…
Shook Of Counsel John Johnson III will answer "That Food Safety or FDA Question You’ve Always Wanted to Ask" in a webinar presented by AIB International on Friday, June 4, at 11:00 a.m. CDT. The webinar will be live and will feature answers to questions commonly asked about food safety as well as questions provided by the audience. Register now to join the webinar on June 4.
New York Attorney General Letitia James has announced a probe into whether baby food contains toxic elements such as arsenic and other metals. In a press release, James said, "“Baby food manufacturers have a legal and moral obligation to ensure the safety of their products, and provide peace-of-mind to the parents who rely on their products every day. Through this probe, I am committed to protecting the health and wellness of the next generation.” D.C. Attorney General Karl Racine filed a lawsuit against Beech-Nut Nutrition Co., alleging "that Beech-Nut’s deceptive and misleading advertising violated the District’s consumer protection laws and misled parents that its baby food underwent the most stringent testing and was fully safe for babies when, in fact, the food contained high levels of toxic heavy metals." Racine is quoted as saying, “No company should profit by illegally deceiving parents about products that actually jeopardize the health and…
An EU study has examined New Genomic Techniques (NGTs), which can create genetically modified organisms (GMOs), and their potential effects on creating a sustainable food system in Europe. In a press release, Commissioner for Heath and Food Safety Stella Kyriakides said, "The study we publish today concludes that New Genomic Techniques can promote the sustainability of agricultural production, in line with the objectives of our Farm to Fork Strategy. With the safety of consumers and the environment as the guiding principle, now is the moment to have an open dialogue with citizens, Member States and the European Parliament to jointly decide the way forward for the use of these biotechnologies in the EU." The announcement notes that the EU will begin an open consultation "to discuss the design of a new legal framework for these biotechnologies." Among the findings of the study are that "NGT products have the potential to…
The European Court of Justice has ruled that alga Lithothamnium calcareum cannot be used in the production of food labeled as organic for the purposes of adding calcium. Natumi GmbH v. Land Nordrhein-Westfalen, No. C‑815/19 (E.C.J., entered April 29, 2021). Natumi GmbH manufactured a drink labeled as organic that is marketed as calcium-rich because of its red algae content, but the German state North Rhine-Westfalia imposed a fine on the company for adding non-edible algae to its products. "Natumi acknowledges that, since the use of calcium carbonate is prohibited for the calcium enrichment of organic products, many producers of soya-, rice- and cereal-based organic drinks add the Lithothamnium calcareum alga to them because it is naturally high in calcium. In addition, Natumi argues that that alga is a natural alternative to calcium and that its use for enriching organic food should be permitted," the court found. However, it stated, allowing the…
Food website Epicurious has announced that it will stop posting new recipes containing beef to avoid "giving airtime to one of the world’s worst climate offenders." As the Washington Post noted, "Reaction was swift and illustrated the meaning of the metaphor about tossing red meat to a crowd. Some praised the decision, noting that tastes have changed and that readers are looking for more plant-based, less meaty dishes. Others slammed Epicurious for 'canceling' beef." The North American Meat Institute commented, suggesting that the reduction in beef recipes will correspond with a reduction in web traffic, according to the New York Times. Others reportedly questioned the effectiveness of the move in achieving its stated goal, with the founder of Food Tank telling the Post that the move is "short-sighted" because options exist for sustainable beef production. "While beef consumption in the U.S. is significantly down from where it was 30 years ago, it…
According to a putative class action complaint, Kodiak Cakes LLC and Baker Mills Inc. deliberately mislead consumers by labeling Kodiak Cakes pancake and waffle mixes as containing 14 grams of protein despite allegedly containing only 11.5 grams. Hinkley v. Baker Mills Inc., No. 21-221 (D. Utah, filed April 13, 2021). "Consumers are increasingly health conscious and, as a result, many consumers seek foods high in protein to support weight loss, exercise, and general fitness, among other perceived health benefits of protein consumption," the plaintiffs argue. "To capitalize on this trend, Defendants prominently label their Kodiak Cakes products as providing specific amounts of protein per serving depending on the product, such as '14g protein' on the label of its Buttermilk Flapjack and Waffle Mix. Consumers, in turn, reasonably expect that each product will provide the actual amount of protein per serving that the label claims it will. In truth, however, Defendants’…
Tootsie Roll Industries has filed a trademark infringement action alleging Lafayette Bay Products, LLC, doing business as Spunky Pup, illegally copied its trade dress by manufacturing and selling a product called "Tootsie Pups." Tootsie Roll Indus. LLC v. Lafayette Bay Prods. LLC, No. 21-1997 (N.D. Ill., E. Div., filed April 14, 2021). Tootsie Roll Industries alleges that the dog treats sold as Tootsie Pups are shaped and colored like Tootsie Roll Midgees, "being brown and cylindrically shaped with a length approximately two times its diameter." Further, the treats are sold in packages that allegedly echo the Tootsie Roll Midgees packaging, including "prominent wording in the same position and the same white font, the large, dark brown middle panel, and the bright stripes on each side of the panel." Tootsie Roll Industries also notes that it has licensed its marks for sale on pet items, allegedly resulting in a likelihood of…
A consumer has alleged that The Kroger Co. misleads with its packaging for sparkling water products sold with flavors such as "Black Cherry," "White Grape" and "Kiwi Strawberry" because the waters are purportedly flavored artificially rather than with extracts of the fruits. Gammino v. Kroger Co., No. 21-2933 (N.D. Cal., filed April 22, 2021). The complaint asserts that Kroger's "packaging, labeling, and advertising scheme for these Products is intended to give consumers the impression that they are buying a premium, all-natural product instead of a product that is artificially flavored." The plaintiff asserts that the flavoring in the beverages comes from malic acid, "a synthetic chemical manufactured in a petrochemical factory from petroleum feedstocks." The complaint lists several causes of action, including alleged violations of Ohio and California's consumer-protection statutes as well as fraud by omission, negligent misrepresentation and money had and received.
The European Food Safety Authority (EFSA) has issued guidance with information advising food business operators on what information should be included on frozen food packaging. The guidance suggests when additional food-safety information should be included, such as a note to only thaw the necessary amount of food and to break up large pieces that have been frozen together inside the package. EFSA also notes that some products will have different shelf-life limits after the packaging has been opened because new pathogens could have been introduced. "From a food safety point of view, freezing prevents the growth of pathogens. However, even though the concentration of pathogens may decrease over time, elimination is usually not complete during the freezing period depending on the pathogen and initial concentrations, the duration of the frozen storage and conditions during freezing/thawing. Pathogenic microorganisms that survive frozen storage can recover during thawing and may grow and/or produce…
