The Robert Wood Johnson Foundation’s (RWJF’s) Healthy Eating Research (HER) panel has released a set of age-based “Recommendations for Healthier Beverages” that urge government buildings, workplaces and other public venues to increase the availability of water and unflavored milk as replacements for high-calorie beverages. Billed as “an advisory panel of prominent researchers, nutritionists and policy experts,” HER evidently arrived at its findings after reviewing “current beverage standards, recommendations, and guidelines from scientific bodies, national organizations, public health organizations, and the beverage industry.” HER has generally recommended that “water should be available and promoted in all settings where beverages are offered” and endorsed unflavored, low-fat and nonfat milk in age-appropriate portions as a way for children to get adequate amounts of calcium, vitamin D, potassium, and other nutrients. The panel would also permit the consumption of small amounts of 100 percent fruit juice—ranging from 0 to-4-ounce portions for preschool children and 0-to-8-ounce…
Pennsylvania residents have filed a putative statewide class action in federal court against the company that makes 5-Hour ENERGY® drinks, claiming that they are promoted as a “healthy vitamin-filled energy drink” but are “nothing more than a shot of caffeine.” Thompson v. Innovation Ventures, LLC, No. 13-336 (W.D. Pa., filed March 7, 2013). The plaintiffs allege that label representations—“Hours of energy now—no crash later” and “Sugar free”—send a message to consumers that the product “will provide five hours of sustained energy within minutes without experiencing any negative ‘crash’ side effects later.” To the contrary, they claim, this “no crash later” representation is false “as admitted on the Defendant’s website and hidden in microscopic language on the back of the bottle which reads: ‘No crash means no sugar crash.’” According to the complaint, more than 25 percent of product users “suffer a caffeine crash.” Claiming purely economic losses and seeking class…
In a nonprecedential summary order, the Second Circuit Court of Appeals has affirmed a lower court ruling against Kosher Sports, Inc., a New Jersey-based provider of kosher food products, which had a 10-year contract with Queens Ballpark Co., the company that operates Citi Field, where the New York Mets play their home games. Kosher Sports, Inc. v. Queens Ballpark Co., LLC, No. 12-2162 (2d Cir., decided March 12, 2013). Kosher Sports claimed that the operating company breached the agreement by refusing to allow it to sell Glatt Kosher hot dogs and sausages and other products on Friday nights and Saturdays. It also claimed that Queens Ballpark failed to provide a suitable location for the company’s fourth cart to sell its products at the stadium. The court found that the unambiguous terms of the contract simply “set forth [Kosher Sports’] ‘rights’ to advertising space, tickets, and freedom from competition” but did…
According to a news source, a Michigan judge has lifted a gag order imposed on an attorney who posted information on his Facebook page critical of a proposed settlement of claims that a McDonald’s Corp. franchisee sold as halal certain chicken products without complying with Islamic standards; the court has also granted his request to reopen the class period thus extending the time for class members to object, intervene or opt out. Ahmed v. McDonald’s Corp., No. 11-014559 (Mich. Cir. Ct., Wayne Cty., order entered March 12, 2013). Additional information about the case and attorney Majed Moughni’s claims of unlawful prior restraint appears in issues 468, 471 and 473 of this Update. In her supplemental notice, Judge Kathleen Macdonald notes, “[a]s you probably know, there was a great deal of attention given to this proposed settlement from the news media (newspapers, television, radio and internet sources) and in social media. For…
The company that makes the Muscle Milk® line of nutrition products has agreed to settle putative class claims that it misrepresented the products’ nutritional value. Delacruz v. CytoSport, Inc., No. 11-3532 (N.D. Cal., motion to approve settlement filed March 7, 2013). Details about the complaint appear in Issue 403 of this Update. A court order leaving just one issue in the case—an allegation that labeling claims of “healthy fats” in a Muscle Milk® product could deceive because a reasonable consumer would expect the product to contain unsaturated and not saturated fats—is summarized in Issue 436 of this Update. Under the proposed agreement, the company would pay the equivalent of $5.275 million for awards to the named plaintiff and class members, a cy pres award, injunctive relief, class notice and settlement administration costs, attorney’s fees and expenses, and products in kind. Claimants with proof of purchase would receive up to $30 each;…
Immediately after a New York court determined that the New York City Department of Health and Mental Hygiene lacked the authority and a rational basis to adopt a prohibition on the sale of sugary beverages in containers larger than 16 ounces, the city filed a notice of appeal, which will reportedly be heard during the first week of June 2013. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dept. of Health & Mental Hygiene, No. 653584/12 (N.Y. App. Div., filed March 12, 2013). Declaring the rule invalid, the state’s supreme court—New York’s trial court—enjoined and permanently restrained the city from implementing or enforcing it. The “Portion Cap Rule” was set to take effect on March 12, but New York Supreme Court Judge Milton Tingling, after exploring at length the scope of the Department of Health’s authority as reflected in city charters dating back to the 1600s, found that it…
The U.S Department of Agriculture (USDA) and U.S. Environmental Protection Agency (EPA) have scheduled a March 28, 2013, public meeting in Arlington, Virginia, to address draft U.S. positions for discussion at the 45th Session of the Codex Committee on Pesticide Residues of the Codex Alimentarius Commission during a May 6-13 meeting in Beijing. Agenda items include (i) a report by the 2012 joint Food and Agriculture Organization and World Health Organization meeting on pesticide residues; (ii) a discussion paper on principles and guidance for estimating maximum residue limits for pesticides; and (iii) a discussion paper on guidance for establishing maximum residue limits for pesticides for minor and specialty crops. See Federal Register, March 14, 2013.
The U.S. Department of Agriculture (USDA) has issued a proposed rule that would revise Country of Origin Labeling (COOL) requirements for muscle cuts of meat and amend the definition of “retailer” to include “any person subject to be licensed as a retailer under the Perishable Agricultural Commodities Act.” Under the proposed rule, “origin destinations for muscle cut covered commodities derived from animals slaughtered in the United States would be required to specify the production steps of birth, raising, and slaughter of the animal from which the meat is derived that took place in each country listed on the origin designation.” According to USDA, the proposed rule would also “eliminate the allowance for any commingling of muscle cut covered commodities of different origins.” The proposal does not change “existing country of origin labeling of imported muscle cuts derived from animals slaughtered in another country.” The agency said that it “expects that…
The Food and Drug Administration (FDA) recently denied a citizen petition seeking to replace “the FDA action level of 1.0 parts per million (ppm) mercury in fish with an action level, regulatory limit or tolerance no greater than 0.5 ppm mercury in fish in order ‘to protect women of childbearing age, pregnant and nursing women, children and the most vulnerable populations.’” Filed by the Center for Biological Diversity and Got Mercury, the petition also asked FDA, among other things, to (i) enforce the new limit “and/or prohibit the sale of seafood that contains mercury concentrations that exceed it,” (ii) require retailers to post point-of-sale warnings or otherwise label fish “known to be high in methylmercury,” and (iii) conduct “regular, widespread” testing for mercury and publicize the results. In denying the petition, FDA noted the agency is authorized “but not required” to set a tolerance, action level or regulatory limit for…
A recent animal study has concluded that exposing rats to a perinatal “junk-food” (JF) diet “results in early desensitization of the opioid system which may explain the increased preference for junk food in these offspring.” Jessica Gugusheff, et al., “A maternal ‘junk-food’ diet reduces sensitivity to the opioid antagonist naloxone in offspring postweaning,” The FASEB Journal, March 2013. Relying on previous research, University of Adelaide scientists apparently surmised that the offspring of dams fed a cafeteria diet would exhibit an increased preference for “palatable” foods thanks to “changes in the µ-opioid receptor expression within the mesolimbic reward pathway.” After the offspring of JF dams were weaned, the study analyzed RNA isolated from the nucleus accumbens (NAc) and ventral tegmental area (VTA) of their brains, in addition to examining how they responded to injections of the opioid antagonist naloxone, which suppresses fat and sugar intake by blocking opioid signaling. According to…
