The Center for Science in the Public Interest (CSPI) has asked Dannon to stop using carmine—a dye reportedly derived from the dried, crushed bodies of cochineal insects—to fruit-flavored yogurt to give it a pink color. According to the advocacy watchdog, Dannon’s practice not only cheats consumers, “who might expect that the named fruits—and not the unnamed creepy crawlies— are providing the color,” but also puts consumers at risk because it has been linked to allergic reactions ranging from hives to anaphylactic shock. See CSPI News Release, July 24, 2013.
“It seems like every time I study an illness and trace a path to the first cause, I find my way back to sugar,” opines University of Colorado-Denver nephrologist Richard Johnson in an August 2013 National Geographic special feature examining the history of sugar consumption. Titled “Sugar Love: A Not So Sweet Story,” the article authored by Rich Cohen traces the spread of sugar from its New Guinea origins throughout the world, in the process raising questions about the sweetener’s impact on heart disease, diabetes and obesity in modern populations. As Johnson asks, “Why is it that one-third of adults [worldwide] have high blood pressure, when in 1900 only 5 percent had high blood pressure? Why did 153 million people have diabetes in 1980, and now we’re up to 347 million? Why are more and more Americans obese? Sugar, we believe, is one of the culprits, if not the major culprit.” In particular, the article…
University of Illinois Associate Professor of Agricultural Law A. Bryan Endres has co-authored a recently published update of the law suggesting that federal government action on a variety of agriculture- and food-related topics, moribund in the months preceding the 2012 presidential election, could increase during the next few years in light of increasing public interest in food production and safety issues. “United States Food Law Update: Shrouded by Election-Year Politics, State Initiatives and Private Lawsuits Fill in the Gaps Created by Congressional and Agency Ossification,” Journal of Food Law & Policy, Spring 2013. Funded in part by the U.S. Department of Agriculture National Institute of Food and Agriculture, the article covers a range of topics including (i) consumer fraud suits challenging the “all natural” promotions for processed food products, (ii) efforts by animal rights organizations to require the humane handling of food animals, (iii) country-of-origin and genetic modification labeling initiatives,…
A federal court in California has granted motions to certify California classes of consumers in two separate consumer-fraud lawsuits involving the “all natural” claims on products made by Bear Naked, Inc. and the Kashi Co. Thurston v. Bear Naked, Inc., No. 11-2890, Astiana v. Kashi Co., No. 11-1967 (S.D. Cal., orders entered July 30, 2013). Details about the latter suit, a consolidated matter, appear under the plaintiff’s name Bates in Issue 408 of this Update. The court agreed with Bear Naked that the named plaintiffs failed to sufficiently show that “natural” has a uniform definition among class members, that a sufficient number of class members would have relied to their detriment on the representation or that the company’s “representation of natural in light of the presence of the challenged ingredients would be considered to be a material falsehood by class members.” Still, the court determined that the plaintiff made a sufficient showing of…
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…
A federal court in New York has determined that while plaintiffs alleging they were sold olive-residue oil, or Pomace, instead of the “100% Pure Olive Oil” appearing on the labels of The Gourmet Factory’s Capatriti-brand products could not maintain a cause of action under the Magnuson-Moss Warranty Act, their claims did exceed the $5 million threshold for maintenance of the action in federal court under the Class Action Fairness Act (CAFA). Ebin v. Kangadis Food Inc. d/b/a The Gourmet Factory, No. 13-2311 (S.D.N.Y., order entered July 26, 2013). The plaintiffs apparently based their amount-in-controversy allegation on documents that the defendant submitted in parallel litigation brought by an olive oil trade association. Details about that suit appear in Issues 470, 482 and 483 of this Update. Thus the court rebuffed the defendant’s attempt to fault the plaintiffs for failing to conduct an independent investigation into the amount-in-controversy before filing the complaint,…
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.
A federal magistrate has recommended that General Mills’ motion to dismiss a putative consumer fraud class action be denied without prejudice and that, under the primary jurisdiction doctrine, the suit be stayed “pending action by the FDA [Food and Drug Administration] with respect to the referral made by Judge Rogers in Cox v. Gruma. Van Atta v. General Mills, Inc., No. 12-2815 (D. Colo., recommendation entered July 18, 2013). At issue is the company’s claim that its granola bars are “100% Natural” when they allegedly contain genetically modified organisms (GMOs). Finding that the food-labeling issue falls within FDA’s regulatory authority and that the agency “has not issued a rule which requires products containing GMOs to be labeled as such, nor has the FDA issued a rule regarding whether products labeled ‘natural’ may contain GMOs,” the magistrate found invocation of the primary jurisdiction doctrine appropriate. In this regard, the magistrate stated,…
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,…
The Environmental Research Center, which frequently files lawsuits to enforce California’s Safe Drinking Water and Toxic Enforcement Act f 986 (Prop. 65), has sued Clif Bar & Co., alleging that it fails to warn consumers that its protein, energy, electrolyte, and snack bars contain lead, a substance known to the state to cause cancer, birth defects and other reproductive harm. Envtl. Research Ctr. v. Clif Bar & Co., No. 13 32935 (Cal. Super. Ct., San Francisco Cty., filed July 18, 2013). The plaintiff seeks injunctive relief and civil penalties of $2,500 per day for each violation of Prop. 65.
