“An enormous amount of media space has been dedicated to promoting the notion that all processed food, and only processed food, is making us sickly and overweight,” writes David Freedman in a July/August 2013 Atlantic article arguing against the widely-held belief that “the food-industrial complex—particularly the fast-food industry—has turned all the powers of food-processing science loose on engineering its offerings to addict us to fat, sugar, and salt, causing or at least heavily contributing to the obesity crisis.” According to the article, “the wholesome food movement” has consistently derided all processed foods as innately fattening, even though many offerings sold by organic and natural food purveyors contain more sugar, fat and salt than their fast-food equivalents. For Freedman, however, these efforts to demonize the food industry have overlooked not only its considerable market influence, but also the role of technology in making healthier foods as palatable as the original products.…
According to a news source, the Federal Bureau of Investigation (FBI) has become involved in the search for the person or persons responsible for the destruction of genetically modified (GM) sugar beet crops in southern Oregon. The purported “economic sabotage” occurred in different fields during two nights in June 2013 and resulted in the loss of some 6,500 plants. Oregonians for Food and Shelter has reportedly offered $10,000 for information leading to the identification, arrest and conviction of the perpetrators. The state Department of Agriculture secretary said that to her knowledge “this is the first time someone has deliberately taken the cowardly step of uprooting high value plants growing in our state. Regardless of how one feels about biotechnology, there is no justification for committing these crimes.” See Ag Professional, June 24, 2013.
The Obesity Policy Coalition (OPC) recently announced that the Australian Advertising Standards Board (ASB) has upheld its complaint alleging that a TV commercial for Kellogg Co.’s Coco Pops® cereal violated the Responsible Children’s Marketing Initiative (RCMI). According to ASB’s case report, the advertisement under review featured a bowl of Coco Pops® playing “Marco Polo” in a cereal bowl, followed by an image of a child consuming the product and a voiceover stating, “Just like a chocolate milkshake only crunchy.” OPC claimed that this commercial violated RCMI by (i) communicating directly with children, (ii) advertising a product that does not “represent a healthy dietary choice consistent with established scientific or Australian government standards,” and (iii) failing to promote “healthy dietary habits or physical activity.” In particular, the coalition argued that the commercial not only imitated children’s voices and behavior in a bid to appeal “overwhelmingly to children,” but was broadcast during…
A recent law review note outlines the history of parens patriae actions that allow states to sue to protect the health and welfare of their citizens, explores its use by state attorneys general to advance public health policy—particularly regarding the use of tobacco—and argues that it cannot be successfully wielded against food companies to address rising levels of obesity in the United States. John Hoke, “Parens Patriae: A Flawed Strategy for State-Initiated Obesity Litigation,” William and Mary Law Review, April 2013. The author opines that the “many different environmental, lifestyle, and uncontrollable genetic causes of obesity” pose a “formidable obstacle to establishing causation.” He also contends that “the sheer number of food companies and food producers further weakens the causal connection between the conduct of the food industry and obesity” and that “there is scant evidence that the food industry has deliberately tried to deceive consumers about the adverse health effects…
According to Marler Clark’s Website, the firm has filed 17 lawsuits against Townsend Farms, the Oregon-based company whose frozen berry and pomegranate seed blend products have purportedly been associated with a hepatitis A outbreak that has, to date, sickened more than 100 people in seven states. The firm has filed eight individual suits in the state courts of Arizona, California, Colorado, and Washington, and nine class action suits in those states and in Hawaii, Idaho, Nevada, New Mexico, and Oregon. William Marler and his firm focus on representing “victims of foodborne illness.” See Food Poison Journal, June 21, 2013.
The companies that make 5-Hour Energy have reportedly expanded a quest to keep their recipe from disclosure by seeking the application of a Tennessee law protecting trade secrets to requests made by the Tennessee Department of Commerce and Insurance and state attorney general for all of the product’s ingredients and their amounts. Information about the suit that Living Essentials and Innovation Ventures filed in Oregon seeking the same relief appears in Issue 488 of this Update. Thirty-three states have launched an investigation into 5-Hour Energy, which purportedly contains more caffeine and other stimulant ingredients than other similar products. See The Tennessean, June 24, 2013.
Answering two of the questions certified to it by the Second Circuit Court of Appeals, New York’s high court has determined that Starbucks Corp. can, under the state’s Labor Law, distinguish among its employees for purposes of sharing the tips customers leave in a jar on the counter. Barenboim v. Starbucks Corp., Winans v. Starbucks Corp., No. 122 (N.Y., decided June 26, 2013). Starbucks’ policy requires the distribution of pooled tips to baristas and shift supervisors. Both classes of employees spend most of their time performing customer-oriented services, such as taking orders, making and serving beverages and food, operating the cash register, cleaning tables, and stocking products. Both also work part-time and are paid hourly. Shift supervisors have minor supervisory responsibilities. Starbucks does not allow assistant store managers or store managers to receive any of the pooled tips. Both classes work full-time and are eligible for bonuses and benefits, such as…
Finding the Food and Drug Administration’s (FDA’s) proposed “target time-frames” “an inadequate response to the request that the parties submit a proposal regarding deadlines that can form the basis of an injunction,” a federal court in California will require the agency to publish all proposed regulations required under the Food Safety Modernization Act by November 30, 2013. Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., decided June 21, 2013). The court further ordered FDA to close each comment period no later than March 31, 2014, and to finalize the rules no later than June 30, 2015. The order follows the court’s determination that FDA violated the FSMA and Administrative Procedure Act by failing to comply with the food safety rulemaking deadlines established by Congress. Additional details about the litigation appear in issues 481 and 487 of this Update.
A federal court in California has issued an order preliminarily certifying a nationwide class for settlement purposes and approved the class settlement in a case alleging that Barbara’s Bakery misled consumers by labeling its products as “all natural” with “no artificial additives,” “no artificial preservatives,” or “no artificial flavors,” when they contained genetically modified (GM), artificial or synthetic ingredients. Trammell v. Barbara’s Bakery, Inc., No. 12-2664 (N.D. Cal., order filed June 26, 2013). Under the proposed terms, the company would create a $4 million non-revertible fund to pay class member claims, an incentive award for the named plaintiff, attorney’s fees, and costs of notice and administration. Class members would able to recover up to $100 for the purchase of products including cereals, cereal bars, cheese puffs, fig bars, granola bars, Snackanimal® animal cookies, organic mini-cookies, snack mixes, and crackers. The settlement would also require the company to modify the labeling and…
The U.K. Food Standards Agency (FSA) has requested public comments about a novel foods application submitted by a U.S. company seeking permission to use refined oil from Bugglossoides arvensis seeds in its food products. The company suggests in the application that the oil is a rich source of omega-3 and omega-6 fatty acids and could be consumed by people who want to increase their intake of omega-3 fatty acids, but are unwilling or unable to consume fish oils—vegetarians, for example. The applicant also indicated that oil made from Bugglossoides arvensis seeds is similar in composition to Echium oil, which is already approved for use in foods in the European Union. FSA will accept comments until July 15, 2013. See FSA News Release, June 25, 2013.
