A recent research article focusing on bisphenol A (BPA) has questioned the use of National Health and Nutrition Examination Survey (NHANES) datasets “to draw causal inferences regarding environmental chemical exposures and adverse health outcomes.” Judy LaKind, et al., “Use of NHANES Data to Link Chemical Exposures to Chronic Disease: A Cautionary Tale,” PLoS One, December 2012. Using “consistent a priori selected methods,” researchers analyzed four NHANES datasets to determine whether (i) there was “a consistent association between urinary [BPA] measures and diabetes, coronary heart disease (CHD), and/or heart attacks across surveys”; and (ii) NHANES was “an appropriate dataset for investigating associations between chemicals with short physiologic half-lives such as BPA and chronic disease with multifactorial etiologies.” The results evidently revealed no significant associations “between urinary BPA and heart disease or diabetes” for any of the NHANES surveys. Based on these findings, the study’s authors opted not to draw “any conclusions…
Science Writer Gary Taubes, who authored Why We Get Fat, writes in Nature magazine that obesity is not a matter of energy in-energy out, but is rather a “hormonal, regulatory defect.” In his December 13, 2012, article titled “Treat obesity as physiology, not physics,” Taubes bases this conclusion on endocrinology and calls for better research into hormonal theories about why we get fat. To that end, he has co-founded the Nutrition Science Initiative, a nonprofit organization “dedicated to reducing the economic and social burden of obesity and obesity-related chronic disease by improving the quality of science in nutrition and obesity research.” Among other matters, the initiative will “fund and facilitate the trials necessary to rigorously test the competing hypotheses, beginning with inpatient feeding studies that will rigorously control dietary interventions for participants so that we know unambiguously the effects of macronutrients— protein, fat and carbohydrates—on weight and body fat.” Taubes…
The Ranchers-Cattlemen Action Legal Fund (R-CALF USA) sent a December 10, 2012, letter to the U.S. Department of Agriculture (USDA) requesting the immediate suspension of imports of ruminants and ruminant products from Brazil after the country notified the World Organization for Animal Health (OIE) about a confirmed case of bovine spongiform encephalopathy (BSE) detected in a 13-year-old cow that died two years ago. R-CALF USA also asked that the suspension “remain in place until [the] agency conducts a thorough and probing investigation to determine the risk of introducing BSE into the U.S. from Brazil,” and noted that “should [the agency] choose to resume such imports from Brazil, [it] must first initiate a public rulemaking with notice and opportunity for comment.” According to an R-CALF USA press release, Brazilian officials in early 2011 subjected the cow to one of two primary tests for mad cow diseas —a histopathological test—that indicated the…
Shook, Hardy & Bacon Global Product Liability attorneys Frank Cruz-Alvarez and Talia Zucker have co-authored an article about a recent federal court ruling that rejected The Hershey Company’s preemption-based challenge to a putative class action alleging that the nutrient content claims on its product labels violate the law. Additional information about Khasin v. The Hershey Co., No. 12-1862 (N.D. Cal. 11/9/12), appears in Issue 463 of this Update. Titled “The Food Court Stays Open: Preemption Defense in Food Labeling Class Action Rejected,” the article was published on December 12, 2012, in the Washington Legal Foundation’s blog “The Legal Pulse.” Noting that the ruling was disappointing for food manufacturers, the authors contend that “hope is not lost. Express preemption remains an essential argument for food company defendants in such litigation and though rejected in the Hershey case, not all facts lend themselves to such a gloomy conclusion.” As an example, they…
One of the 750 beef processing plant employees who lost his job in the wake of recent negative publicity involving “lean finely textured beef,” otherwise referred to in the media as “pink slime,” has reportedly filed a lawsuit in a Nebraska state court naming as defendants celebrity chef Jamie Oliver, ABC’s Diane Sawyer, a blogger, and 10 unnamed individuals. Bruce Smith, who worked as senior counsel and director of environmental, health and safety at Beef Products, Inc., is apparently seeking $70,000 in damages on the ground that the company “and its employees were unfairly and unnecessarily maligned and accused of producing a food product that did not exist, a product that critics unfairly labeled ‘pink slime.’” The publicity apparently led to the loss of numerous contracts for the product’s purchase. See The Daily Mail, December 12, 2012.
According to a news source, the first “popcorn-lung” occupational exposure case tried in California has resulted in a defense verdict. Velasquez v. Flavor & Extract Mfrs. Ass’n, No. BC370319 (Cal. Super. Ct., Los Angeles Cty., verdict reached December 12, 2012). The plaintiff was a former flavoring factory employee who claimed that his exposure to the butter-flavoring chemical diacetyl caused his debilitating lung disease, bronchiolitis obliterans. His attorney was quoted as saying, “The defense was very effective in confusing the jury,” observing that the defense suggested that the plaintiff’s health problems could have been attributed to acetaldehyde, another chemical flavoring. The lawsuit originally involved 10 defendants, a number of whom settled with the plaintiff before trial. Plaintiff’s counsel has reportedly indicated that the verdict will be appealed, citing, among other matters, the trial corut’s decision to allow the jury to hear that the plaintiff is an illegal immigrant. See Law360, December 13, 2012.
A plaintiff who claims he began consuming Monster Beverage energy drinks as a teenager, because he was offered free beverages from a truck parked outside his high school, has filed a putative nationwide consumer-fraud class action against the company in a California federal court. Fisher v. Monster Beverage Corp., No. 12-02188 (C.D. Cal., filed December 12, 2012). Among other matters, he claims that the company aggressively markets the products to youth and falsely labels them as dietary supplements to avoid regulation under Food and Drug Administration beverage rules. He further contends that the products are addictive. Alleging violations of California’s Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act, breach of express and implied warranties, violation of the Magnuson-Moss Warranty Act, and unjust enrichment, the plaintiff seeks actual, statutory and punitive damages; corrective labeling, advertising and marketing; full restitution and disgorgement; and interest.
A federal court in California has dismissed in part putative class claims filed by a man who alleges that Ghirardelli Chocolate Co. white chocolate products do not contain the requisite white chocolate ingredients to be labeled and promoted as such. Miller v. Ghirardelli Chocolate Co., No. 12-04936 (N.D. Cal, decided December 6, 2012). The court agreed with Ghirardelli that the plaintiff lacked standing to pursue claims relating to four products that he did not purchase. According to the complaint, the plaintiff bought a package of “Ghirardelli Chocolate Premium Baking Chips Classic White” and sought recovery on behalf of a class of purchasers of that product as well as white chocolate wafers, ground white chocolate flavor, a mocha mix, and a frappé product. Noting that controlling authority is lacking on whether plaintiffs have standing for products they did not purchase, the court discussed two lines of cases: one in which federal courts have…
A federal court in Minnesota has dismissed without prejudice state law-based consumer-fraud claims filed against a company that makes Greek yogurt not by straining it, a process essential to the traditional production of this thickened dairy product, but by adding milk protein concentrate (MPC). Taradejna v. General Mills, Inc., No. 12-993 (D. Minn., decided December 10, 2012). So ruling, the court directed the parties to initiate proper proceedings before the Food and Drug Administration (FDA). The court recites FDA yogurt-related standard-of-identity initiatives since 1981, culminating in a pending 2009 proposal that would permit the use of “any safe and suitable milk-derived ingredient as an optional dairy ingredient in the manufacture of yogurt.” Finding that application of the primary jurisdiction doctrine was appropriate in the matter, the court states, “The underlying issue here is whether MPC is a proper, permitted ingredient in yogurt. The resolution of this question falls squarely within the…
A multidistrict litigation (MDL) court that is considering pretrial matters in 91 consolidated antitrust lawsuits alleging that major chocolate manufacturers conspired to implement price increases from 2002 through 2007, has granted the direct-purchaser plaintiffs’ motion for class certification. In re Chocolate Confectionery Antitrust Litig., MDL No. 1935 (M.D. Pa., order entered December 7, 2012). The court did so after first determining whether the plaintiffs’ expert testimony in support of class certification is reliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The U.S. Supreme Court is currently facing a similar issue, that is, “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” The MDL court, noting that the issue has not yet been decided in…
