A unanimous U.S. Supreme Court has determined that the Ninth Circuit erred by failing to consider the unconstitutional takings defense raised by raisin growers who were subject to penalties and assessments for failure to pay assessments and set aside reserve-tonnage raisins under a Depression-era program intended to stabilize prices for agricultural commodities by limiting their quantity in the domestic competitive market. Horne v. USDA, No. 12-123 (U.S., decided June 10, 2013). Pursuant to the Tucker Act, claims “for just compensation under the Takings Clause must be brought to the Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant statute.” The Court found that the Agricultural Marketing Agreement Act (AMAA) of 1937 displaces Tucker Act jurisdiction and, because the raisin growers had no alternative remedy, “their takings claim was not ‘premature’ when presented to the Ninth Circuit.” The Court…
The Food and Drug Administration (FDA) has issued a final rule that amends color additive regulations to provide for “the safe use of mica-based pearlescent pigments prepared from titanium dioxide and mica as color additives in distilled spirits containing not less than 18 percent and not more than 23 percent alcohol by volume but not including distilled spirits mixtures containing more than 5 percent wine on a proof gallon basis.” The action follows a petition filed by E. & J. Gallo Winery and takes effect July 15, 2013. See Federal Register, June 12, 2013.
The U.S. Department of Treasury’s Alcohol and Tobacco Tax and Trade Bureau (TTB) has issued a final rule amending the mandatory labeling requirements for wine to permit alcohol content “to appear on other labels affixed to the container rather than requiring it to appear on the brand label.” Effective August 9, 2013, the final rule seeks to provide greater flexibility in wine labeling “and will conform the TTB wine labeling regulations to the agreement reached by the members of the World Wine Trade Group [WWTG] regarding the presentation of certain information on wine labels.” According to TTB, the WWTG Agreement on Requirements for Wine Labeling specifies that all wine labels must display the following common mandatory information (CMI): (i) country of origin, (ii) alcohol content (percentage by volume), (iii) net contents, and (iv) product name. Under the agreement, all four of the CMI elements must appear in a “single field…
Sen. Dianne Feinstein (D-Calif.) has introduced legislation (S. 1124) that would require warning labels on all food packaging made with bisphenol A (BPA). Titled the “BPA in Food Packaging Right to Know Act,” the bill would require such packaging to bear labels stating, “This food packaging contains BPA, an endocrine-disrupting chemical,” in addition to directing the Department of Health and Human Services to conduct a safety assessment of food containers with BPA. Citing more than 200 scientific studies that have purportedly linked BPA exposure to cancer, reproductive disorders, cardiac disease, diabetes, early puberty, and other problems, Feinstein said, “evidence continues to mount that BPA exposure is a risk to human health, especially for children . . . [and] it is essential that consumers know what chemicals are in the products they purchase. Our children should not be used as guinea pigs by chemical companies when their parents are left in…
The Organisation for Economic Co-operation and Development (OECD) has released a summary of survey results pertaining to the regulatory framework in 12 countries that provide oversight of nanotechnology in food and medical products. Conducted in 2011-2012, the survey addressed (i) “the regulatory frameworks being used to provide oversight for the use of nanotechnology in the relevant field,” (ii) “the legislative frameworks relevant to these regulatory frameworks,” and (iii) “relevant government supported research programmes and institutions.” OECD has concluded that food ingredients, additives, colorings, and contact substances “that may contain nanomaterials or otherwise involve the application of nanotechnology are covered under existing national and/or regional legislative and regulatory frameworks that are relevant and applicable to foods.” See OECD News Release, May 28, 2013.
The American Public Health Association’s 141st annual meeting and exposition is slated for November 2-6, 2013, in Boston, Massachusetts. Expected to attract more than 13,000 physicians, researchers, epidemiologists, and related health specialists, and featuring a myriad of presentations, the meeting will include a session on “Regulating for the Public’s Health: Food and Beverages, Drugs, and Emerging Technologies.” Among the presentations during this session are the legal considerations of antibiotics in food animals, focusing on a court order requiring that the Food and Drug Administration (FDA) complete proceedings to withdraw approval of certain antibiotics (presented by Centers for Disease Control and Prevention senior attorney Heather Horton), and “Legal strategies to increase funding and improve the FDA’s authority over food labeling violations and questionable claims” (presented by Rudd Center for Food Policy and Obesity attorney Jennifer Pomeranz). Pomeranz contends that FDA lacks sufficient authority and funding to address misbranded food products and “[t]he…
Austin-based Amy’s Ice Creams has reportedly filed a trademark infringement lawsuit in a federal district court against Amy’s Kitchen, which makes frozen lunch and dinner entrées with organic and non-genetically modified ingredients. While the two companies have apparently co existed without difficulty for more than 20 years, Amy’s Ice Creams, now with 15 shops throughout Texas, claims that it recently learned about the frozen food company’s plan to launch a line of frozen treats. Amy’s Kitchen is based in California, and its products are sold nationally. Ice cream company founder Amy Simmons reportedly said, “We don’t want them to go into ice cream because there will be obvious confusion.” According to the complaint, the confusion would not be limited to Texas consumers, as the ice cream company “is well known beyond the state. The success of Amy’s [Ice Creams] has been featured in such publications as Inc., Southern Living, Wall…
Chef Kyle Connaughton, who has “been employed by some of the most prestigious restaurants in the world,” co-authored books and co presented on United Kingdom (U.K.) TV programs, has sued Chipotle Mexican Grill and its CEO, claiming that he was hired to developed a ramen-noodle fast-food restaurant concept that was doomed to fail because someone else had already created the concept in the context of a confidential business deal with Chipotle that did not come to fruition. Connaughton v. Chipotle Mexican Grill, Inc., No. 155106/2013 (N.Y. Sup. Ct., N.Y. Cty., filed June 3, 2013). Connaughton allegedly developed the business plan and concept from 2010-2012 in close collaboration with Chipotle employees. Connaughton later learned on meeting with Momofuku’s Noodle Bar chief marketing officer that Momofuku would sue Chipotle when its ramen restaurant opened because owner David Chang had developed the same concept for Chipotle in 2008. Because Chang could not come to terms…
A federal court in California has reportedly determined that a named plaintiff in a putative consumer-fraud class action may pursue claims pertaining to the defendant’s green tea products but not its black teas. Khasin v. R.C. Bigelow, Inc., No. 12-2204 (N.D. Cal., order entered May 31, 2013). The plaintiff apparently alleges that the defendant made misleading statements in press releases and on its website about the presence of antioxidants in its tea products, including both green and black teas. Because he did not purchase the black teas, the court ruled that he lacked standing to represent consumers who did purchase them. The court also reportedly dismissed the plaintiff’s unjust enrichment claim but refused to dismiss most of his other allegations finding them sufficiently pleaded. See Bloomberg BNA Product Safety & Liability Reporter, June 4, 2013.
A federal court in Arkansas has ruled that it has jurisdiction, pursuant to the U.S. Supreme Court’s seminal standing decision under the Class Action Fairness Act (CAFA), Standard Fire Insurance Co. v. Knowles, 133 S. Ct. 1345 (2013), to adjudicate the putative class claims filed by a woman who alleges that Frito-Lay deceives consumers by labeling its Tostitos® and SunChips® products as “All Natural” because they contain genetically modified corn and hexane-extracted soybean oil. Deaton v. Frito-Lay N. Am., Inc., No. 12-1029 (W.D. Ark., order entered June 5, 2013). At issue was whether the defendants had submitted sufficient evidence to show that the amount in controversy exceeded CAFA’s $5 million jurisdictional minimum. The plaintiff had stipulated that she would not seek more than $5 million to keep the lawsuit in state court, but conceded that her stipulation could not prevent removal under the Knowles decision. The court ruled that the…
