The New York Supreme Court Appellate Division recently heard arguments in the New York City Department of Health and Mental Hygiene’s (DOHMH’s) appeal of an order striking down its initiative to limit the size of sodas sold in restaurants and other venues. According to media reports, city lawyer Fay Ng argued that, contrary to the lower court’s decision, the “Portion Cap Rule” did not exceed DOHMH’s authority and has a rational basis in the need to curb rising obesity rates without entirely precluding consumer choice. In overturning the regulation, which would have taken effect March 12, 2013, New York Supreme Court Judge Milton Tingling not only ruled that DOHMH lacked “the authority to limit or ban a legal item under the guise of ‘controlling chronic disease,’” but that the measure would have “arbitrary and capricious consequences” arising from “uneven enforcement” and “loopholes,” such as application to some but not all…
An outbreak of hepatitis A linked to frozen berry and pomegranate mixes sold in eight states has reportedly sickened 87 consumers to date and spawned at least three putative class actions seeking compensation for hepatitis A testing and vaccination. According to media reports, residents in Arizona, California and Nevada filed lawsuits after the Colorado Department of Public Health and Environment advised all consumers exposed to the allegedly contaminated berries to request hepatitis A vaccination or immune globulin injections to reduce their risk of contracting the disease. In addition to the costs of vaccination, the complaints against Townsend Farms Corp. are seeking compensation for time missed from work as well as other expenses related to the outbreak. See Law360, June 3, 2013; NBC News, June 11, 2013; KTAR, June 12, 2013; KRNV & MyNews4.com, June 13, 2013.
A California resident has filed a putative statewide class action alleging that Pepperidge Farm falsely advertised and labeled its Goldfish® crackers as “Natural” despite using genetically modified (GM), synthetic or artificial ingredients to make them. Koehler v. Pepperidge Farm, Inc., No. 13-2644 (N.D. Cal., filed June 10, 2013). Among other matters, the plaintiff alleges that the company changed the product’s packaging and labeling to remove the “Natural” statement and characterizes this as “an implied admission that the Products were not natural at all material times hereto when the Plaintiff and putative Class Members purchased the Products that claimed to be ‘Natural’ and no longer make said claim.” According to the complaint, the company’s cheddar-flavored products “contain genetically modified soy in the form of soybean oil, as well as the following ingredients, which, upon information and belief, were each synthetically produced: thiamine mononitrate (‘vitamin B1’), riboflavin (‘vitamin B2’), folic acid and…
Two additional putative class actions have been filed against Monsanto Co., alleging that the recent discovery of genetically modified (GM) wheat on a farm in Oregon has harmed wheat farmers throughout the United States due to diminished prices “resulting from loss of export and domestic markets” and “increased grower costs resulting from the need to, inter alia, maintain the integrity of the soft white wheat supply and/or to keep genetically engineered wheat from further entering the general wheat supply and export channels.” Dreger Enters. v. Monsanto Co., No. 12-211 (E.D. Wash., Spokane, filed June 5, 2013); Ctr. for Food Safety v. Monsanto Co., No. 13-213 (E.D. Wash., filed June 6, 2013). Like the suit filed by a Kansas farmer, the plaintiffs allege nuisance, negligence and strict liability as to Monsanto’s conduct of field tests of GM wheat throughout the country from 1998 to 2005. Information about the other lawsuit appears…
According to a news source, a California appeals court indicated during oral argument that it would likely reverse the dismissal order of a lower court in a wrongful death action alleging that Dole Food Co. paid Colombian paramilitaries to kill 170 people near South American banana plantations. Gomez v. Dole Food Co., Inc., No. B242400 (Cal. Ct. App., 2d App. Div.). During the June 12, 2013, hearing, the court reportedly said “legal problems” with the trial court’s dismissal were sufficient to warrant reversal. In 2012, the lower court dismissed the suit after the plaintiffs’ lawyers failed to file a new complaint within 30 days after an appeals court ruling allowing them to do so became final. Plaintiffs’ counsel apparently claimed that they were unaware of the deadline imposed under California procedural rules and that the court erred by dismissing the case on the basis of Dole’s purported ex parte application. See Law360,…
A federal court in California has preliminarily approved a $3 million settlement of claims by state Starbucks Corp. employees that the company denied them off-duty breaks because its busy stores were understaffed and the company required employees to take their breaks on-duty if only two employees were present. York v. Starbucks Corp., No. 08-7919 (C.D. Cal., order entered June 10, 2013). According to a news source, the court expressed some reservations about the incentive awards to the named plaintiffs, noting that the Ninth Circuit “seems to be taking an evermore-aggressive look at incentive awards and expecting the trial court to look closely at those things.” Additional information about the settlement appears in Issue 484 of this Update. See Law360, June 10, 2013.
The Center for Food Safety and the Food and Drug Administration (FDA) have filed separate proposals to implement a court order requiring the agency to complete its rulemaking under the Food Safety Modernization Act (FSMA) after finding that FDA had violated the law by failing to meet its rulemaking deadlines. Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., proposals filed June 10, 2013). Additional information about the court’s order appears in Issue 481 of this Update. According to plaintiff’s proposal for injunctive relief, FDA “utterly fails to comply with the Court’s Order and FSMA,” because the agency has insisted on establishing “a schedule of target timeframes” that the agency “will endeavor to meet” with caveats that could require new timeframes. The Center proposes May 1, 2014, as the date on which seven final implementing rules must be submitted to the Federal Register. It would add an additional year to…
A federal judge in California has notified the parties to a consumer-fraud action against the company that makes Mission® tortilla chips of her inclination to stay the litigation for six months and refer to the Food and Drug Administration (FDA) the question “whether products containing GMO [genetically modified organisms] or bioengineered ingredients may properly be labeled ‘Natural’ or ‘All Natural.’” Cox v. Gruma Corp., No. 12-6502 (N.D. Cal., notice filed June 7, 2013). The plaintiffs have opposed the tentative stay order, arguing that a prompt regulatory determination is unlikely given FDA’s past inaction on the matter. They reportedly cited a recent Florida decision denying a soup company’s motion to dismiss similar litigation on preemption grounds because FDA does not regulate “Natural” or “All Natural” food labeling claims. The court, however, cited a Ninth Circuit ruling deferring to FDA’s regulatory authority so that the agency’s “considered judgments” would not be undermined…
A federal court in California has denied the class certification motion filed by a woman who sought to represent anyone in the state who had purchased products in entire beverage lines produced by the defendant, because she had purchased just five specific products and thus her labeling and misbranding claims were not typical of those of the putative class. Major v. Ocean Spray Cranberries, Inc., No. 12-3067 (N.D. Cal., decided June 10, 2013). The amended complaint alleged that the company’s juice and drink products were unlawfully labeled “No Sugar Added” or had improper nutrient claims or false representations that the products were “free from artificial colors, flavors or preservatives.” While the plaintiff had purchased five beverages, including a Diet Sparkling Pomegranate Blueberry drink, she sought to certify a class of purchasers of entire product lines, such as 100% juice and Sparkling. According to the court, the plaintiff “has not met her…
The Federal Circuit Court of Appeals has affirmed a district court’s dismissal of the declaratory judgment action brought by a number of organizations representing the interests of organic farmers. Organic Seed Growers & Trade Ass’n v. Monsanto Co., No. 2012-1298 (Fed. Cir., decided June 10, 2013). The farmers sought a declaration of non-infringement and invalidity with respect to 23 patents on various crops, including soybeans and corn. Details about the lower court’s ruling appear in Issue 429 of this Update. According to the Federal Circuit, “Monsanto has made binding assurances that it will not ‘take legal action against growers whose crops might inadvertently contain traces of Monsanto biotech genes (because, for example, some transgenic seed or pollen blew onto the grower’s land), and [the organic farmers] have not alleged any circumstances placing them beyond the scope of those assurances.” The court agreed with the district court that there was no…
