The Eighth Circuit Court of Appeals has upheld the legality of three-month prison sentences handed down to former Quality Egg, LLC executives Austin “Jack” DeCoster and his son Peter, former officials of the company deemed responsible for a 2010 Salmonella outbreak traced to its Iowa egg farms. United States v. Quality Egg, LLC, No. 15-1890 (8th Cir., order entered July 6, 2016). Convicted of misdemeanor violations of the federal Food, Drug, and Cosmetic Act (FDCA), the DeCosters argued their sentences were unconstitutional under the Due Process Clause and the Eighth Amendment because incarceration for their offenses is either altogether inappropriate or disproportionate to the crimes. Upon a de novo review of the case, the appeals court confirmed that “the DeCosters are liable for negligently failing to prevent the salmonella outbreak.” Further, the men’s sentences did not violate the Due Process Clause because the sentences were “relatively short” and the “convictions…
The European Food Safety Authority (EFSA) has released a searchable database of botanicals that contain naturally occurring substances of potential concern to human health. The compendium is intended for use as a safety assessment tool for food and dietary supplement manufacturers. The compendium will reportedly be expanded to include non-European botanical species and is expected to be finalized in early 2017. See EFSA News Release, July 5, 2016. Issue 610
The U.S. Department of Agriculture’s Office of the Under Secretary for Food Safety and Agricultural Marketing Service are convening an August 1, 2016, public meeting in Washington, D.C., to evaluate draft positions and receive public comments in advance of the 28th Session of the Codex Committee on Processed Fruits and Vegetables (CCPFV) slated for September 12-16 in Washington, D.C. The CCPFV sets global standards for canned, dried and frozen products as well as fruit and vegetable juices and nectars. Agenda items for the August 1 meeting include (i) food additive provisions in Codex standards for processed fruits and vegetables, (ii) a discussion paper about the standardization of dry and dried produce, and (iii) proposed draft annexes on quick frozen vegetables. See Federal Register, June 30, 2016. Issue 610
A new report from the public policy research arm of the U.S. Congress provides an overview of federal research and development (R & D) in nanotechnology; environmental, health and safety concerns; and U.S. competitiveness in the field. According to the Congressional Research Service, Congress has appropriated nearly $21.8 billion for nanotechnology R & D since the inception of the National Nanotechnology Initiative (NNI) in 2000, and President Barack Obama (D) has requested $1.4 billion in NNI funding for FY2017. “Proponents assert that nanotechnology has the potential to bring revolutionary products to market, reshaping existing industries and creating new ones,” concludes the report. “These products may bring significant economic and social benefits to the United States and to the world; however, substantial research, development, and innovation. Issue 610
Former U.S. Food and Drug Administration (FDA) Commissioner for Foods David Acheson has authored an article warning food company officials to prioritize food safety in light of the U.S. Department of Justice’s (DOJ’s) increasing prosecutions against executives of food companies responsible for pathogen outbreaks. Acheson describes the Park Doctrine, which allows the government to seek misdemeanor convictions against company officials without requiring proof that the officials knew of or participated in the federal Food, Drug and Cosmetic Act violations. Further, after a misdemeanor conviction, subsequent violations are automatic felonies. “It is for all these reasons that it is critical that everyone in a food facility understand and follow all food safety practices, and that executives stay tuned in to everything going on in their operations—as they are ultimately responsible for every act that takes place,” Acheson writes. “Additionally, while I caution against simply writing up a food safety plan in order…
A consumer has filed a putative class action against Mondelez International Inc., maker of Sour Patch Kids, alleging the company sells 28 pieces of candy in a non-transparent cardboard package capable of holding 50 pieces. Izquierdo v. Mondelez Int’l Inc., No. 16-4697 (S.D.N.Y., filed June 20, 2016). The complaint asserts that Mondelez intentionally sells Sour Patch Watermelon in oversized packages in violation of state and federal law. For allegations of misrepresentation, fraud and unjust enrichment as well as violations of New York consumer-protection statutes, the plaintiff seeks class certification, damages, restitution, an injunction requiring more accurate packaging and attorney’s fees. Issue 609
A consumer has filed a putative class action against Herr Foods Inc., maker of potato chips, popcorn and cheese curls products, alleging the company mislabels its foods as preservative-free despite containing citric acid. Hu v. Herr Foods Inc., No. 16-3313 (E.D.N.Y., filed June 20, 2016). The complaint alleges Herr seeks “to capitalize on consumers’ preference for natural products and the association between such products and a wholesome way of life” by labeling the products as free of preservatives, but the products contain citric acid, “a non-natural, chemically processed ingredient and preservative.” For allegations of misrepresentation, breach of warranties and unjust enrichment as well as violations of New York consumer-protection statutes, the plaintiff seeks class certification, restitution, damages, an injunction and attorney’s fees. Issue 609
The Julia Child Foundation for Gastronomy and the Culinary Arts has filed a lawsuit against Airbnb Inc. alleging the home-sharing company used Child’s name and likeness without permission in an advertised promotion. Julia Child Found. For Gastronomy & Culinary Arts v. Airbnb Inc., No. 16-2626 (Cal. Super. Ct., Santa Barbara Cty., filed June 22, 2016). According to the complaint, Airbnb contacted the foundation in April 2016 requesting permission to use the famed American chef and author’s name and likeness in an ad promoting a free night’s stay at a French property Child and her husband had used as a summer home. “Consistent with Mrs. Child’s longstanding and widely-known policy of politely refusing all requests to associate her name or image with commercial products and brands,” the foundation denied the request, then discovered that Airbnb used her image in its marketing campaign anyway. The foundation seeks a preliminary and permanent injunction,…
Siding with the owners of the Empire State Building, the Trademark Trial and Appeal Board has refused to register a logo for “NYC Beer” featuring a drawing of the building. ESRT Empire State Bldg. v. Liang, No. 91204122 (T.T.A.B., order entered June 17, 2016). Claiming ownership of a trademark in a line drawing featuring the building, ESRT Empire State Building filed an opposition to Michael Liang’s application to register a black-and-white image resembling the Empire State Building circled by a black ring and the words “NYC Beer.” TTAB found that the image was likely to dilute ESRT’s mark, finding that Liang’s description in his application of “a building resembling the Empire State Building” belied his argument that the design could be a different building. Accordingly, the board refused to grant the trademark. Issue 609
A California federal court has invalidated an amended section of the Organic Foods Production Act that allowed organic producers to use compost materials containing synthetic fertilizers, finding the U.S. Department of Agriculture (USDA) violated the Administrative Procedures Act (APA) by failing to subject the amendment to public notice and comment before it took effect. Ctr. for Envtl. Health v. Vilsack, No. 15-1690 (N.D. Cal., order entered June 20, 2016). Details about the complaint appear in Issue 562 of this Update. In 2011, USDA issued guidance on the agency’s position allowing the use of fertilizer and compost containing unapproved synthetic materials in the production of organic food. The plaintiffs, three environmental groups, argued that the guidance was a legislative rulemaking—thus triggering requirements of public notice and comment under the APA—while USDA asserted that it had merely clarified a preexisting rule, not changed it. The court sided with the environmental groups, finding the…
