The World Trade Organization (WTO) has reportedly established a compliance panel at the request of Canada and Mexico in an ongoing dispute over the U.S. country-of-origin (COOL) meat labeling rules. Canada’s International Trade Minister Ed Fast and Agriculture Minister Gerry Ritz applauded the WTO action, saying that the United States must “respect its international trade obligations and put an end to mandatory Country of Origin labeling.” Canada argues that recent changes to the COOL implementing regulations did not bring them into conformity with WTO obligations. Because the compliance panel consists of the original members who found that the U.S. law was unfair to foreign meat producers, the Canadian officials suggest that the process will be accelerated. If the challenge succeeds, “which may include an appeal to the WTO Appellate Body, Canada could seek authorization from the WTO to impose retaliatory tariffs on U.S. imports.” Meanwhile, meat and livestock organizations that…
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 Ct., order entered September 27, 2013) (not precedential).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…
A federal court in California has preliminarily approved the settlement of shareholder claims that Diamond Foods, Inc. “deliberately understated the costs of walnuts and improperly accounted for payments made to walnut growers to increase apparent profits and maintain higher share prices” in anticipation of the anticipated purchase of Pringles with company stock. In re Diamond Foods, Inc. Securities Litig., No. 11-5386 (N.D. Cal., order entered September 26, 2013). Additional details about the litigation appear in issues 464 and 482 of this Update. Under the terms of the agreement, the defendants will pay to the class $11 million and distribute 4.45 million shares of Diamond common stock—valued at $85.1 million as of August 2013. According to the court, while the maximum aggregated damages totaled some $430 million, the settlement is reasonable in light of “Diamond’s weakened financial condition.” It apparently has just $7.2 million in cash and cash equivalents and carries…
As the fiscal year came to a close and on the eve of the federal government shutdown, the Equal Employment Opportunity Commission (EEOC) filed nearly two dozen employment discrimination lawsuits including one against GMRI, Inc. alleging discrimination based on sex on behalf of a class of women employees at a Salisbury, Maryland, Red Lobster Restaurant. EEOC v. GMRI, Inc., No. 13-2860 (D. Md., filed September 30, 2013). According to the complaint, the defendant’s former culinary manager created a sexually hostile and offensive work environment for the two women who filed the complaint as well as “other similarly situated female employees” by engaging in frequent sexual touching, sexual comments, sexual advances, and vulgar sexual conduct. The conduct, which was allegedly “open and notorious and occurred on a frequent and routine basis,” was purportedly condoned by a former general manager who “himself had a history of making sexually charged and vulgar comments…
A federal court in California has denied the motion to dismiss filed in a putative nationwide class action alleging that Blue Diamond Growers misled consumers by labeling its almond milk products and snack foods as “all natural” and representing that they contain “evaporated cane juice,” (ECJ) in violation of federal labeling requirements incorporated into state law. Werdebaugh v. Blue Diamond Growers, No. 12-2724 (N.D. Cal., San Jose Div., order entered October 2, 2013). The court determined that the claims were not preempted by federal law or the primary jurisdiction doctrine, the plaintiff had standing to pursue claims regarding substantially similar products that he did not purchase, the claims were pleaded with sufficient particularity, and the defendant’s conflict-of-laws challenge was premature.
A federal court in California has dismissed with limited leave to amend the second amended complaint filed on behalf of a putative nationwide class against Welch Foods, alleging that the company’s juice, beverage, spread, and jelly labels and Website violate California labeling law by including “no sugar added,” “all natural,” “no artificial flavors,” and “high in antioxidants” statements. Park v. Welch Foods, Inc., No. 12-6449 (N.D. Cal., order entered September 26, 2013). Agreeing that the complaint sounded in fraud and must comply with the heightened pleading standard of Federal Rule of Civil Procedure 9, the court noted that “Welch is after the who, what, where, when, and how surrounding the circumstances in which Plaintiffs were misled.” The company apparently argued that “portions of the complaint are generously and blindly appropriated from similar complaints filed in this district,” and that a 15-page limit would be appropriate. Still, “Welch wants to know specifically…
A federal court in the District of Columbia has dismissed, for lack of standing, a lawsuit filed by the Humane Society of the United States and several other plaintiffs against the U.S. Department of Agriculture (USDA), challenging the secretary’s approval of the National Pork Board’s purchase of the slogan “Pork, The Other White Meat” from the National Pork Producers Council (NPPC). The Humane Soc’y of the U.S. v. Vilsack, No. 12-1582 (D.D.C., decided September 25, 2013). Details about the lawsuit appear in Issue 455 of this Update. According to the court, the individual pork farmer plaintiff lacked standing because he could not show that changes to the advertising funded by the pork checkoff program following the board’s purchase and retirement of the slogan affected him financially. In fact, since the board began advertising with the slogan “Pork: Be Inspired,” the net return on investment to pork producers rose from $13.8…
Calling it “ridiculous to say that consumers would expect snack food ‘made with real fruit’ to contain only ‘actual strawberries or raspberries,’ rather than these fruits in a form amenable to being squeezed inside a Newton,” a federal court in California has dismissed without leave to amend consumer fraud claims against the company that makes Nabisco strawberry and raspberry Newton cookies. Manchouck v. Mondeléz Int’l Inc., No. 13-2148 (N.D. Cal., decided September 26, 2013). The court determined that the plaintiff had Article III standing without alleging physical injury because this is not the sole measurement of injury-in-fact and the plaintiff alleged that she had paid a premium price for the products which she would not have purchased “at that price point absent the alleged misstatements.” The court agreed with the defendant, however, that the plaintiff had failed to meet the plausibility pleading standard set forth in Ashcroft v. Iqbal, 556 U.S.…
The U.S. Judicial Panel on Multidistrict Litigation (JPML) recently heard argument on the Center for Food Safety’s motion to transfer to a multidistrict litigation (MDL) court pending lawsuits against Monsanto Co. involving the genetically modified (GM) wheat that appeared in an Oregon farmer’s conventional wheat field and briefly disrupted exports to some of the nation’s trading partners. In re Monsanto Co. Genetically Engineered Wheat Litig., MDL No. 2473 (J.P.M.L., motion argued September 26, 2013). The center requested that suits filed in Idaho, Kansas, Oregon, and Washington be transferred to the Eastern District of Washington. Additional details about the Kansas litigation appear in Issue 486 of this Update.
The French Agency for Food, Environmental and Occupational Health and Safety (ANSES) has released a report that warns of the risks associated with consumption of energy drinks, particularly for children, pregnant women and people with certain genetic predispositions, such as cardiovascular or psychiatric and neurological disorders, kidney failure or liver disease. The agency also recommends that consumers stop drinking the beverages in combination with alcohol and during physical exercise, suggesting stricter laws on advertising and prohibiting the products from sporting events and festivals. Noting that caffeine has long been consumed throughout the world, ANSES reports that its “novel and increasingly popular presentation in the form of so-called energy drinks is changing consumption patterns,” with approximately 30 percent of the French population consuming enough energy drinks “to push themselves into states of anxiety (around six espressos).” French National Assembly Social Security Budget Rapporteur Gérard Bapt reportedly intends to propose a special…
