Consumer Reports magazine has allegedly identified bacterial contamination as well as antibiotic-resistant bacteria and veterinary drug residues in pork chop and ground-pork samples purchased from U.S. grocery stores. According to an analysis in the January 2013 edition of the magazine, 69 percent of the 198 pork samples in question purportedly contained Yersinia enterocolitica; 11 percent contained Enterococcus; and 3 to 7 percent contained Salmonella, Staphylococcus aureus, or Listeria monocytogenes. In addition, the magazine reported that 13 of 14 Staphylococcus samples isolated from pork were resistant to antimicrobials, as were six of eight Salmonella samples, 12 of 19 Enterococcus samples, and 121 of 132 Yersinia samples. Consumer Reports has also claimed that approximately one-fifth of 240 pork products analyzed in a separate test “harbored low levels of the drug ractopamine,” a growth promoter used in U.S. pork production but banned in the European Union, China and Taiwan. Consumers Union, the policy…
A putative class action alleging that Dole Food Co. misleads consumers by claiming it is an environmentally friendly and socially responsible company despite purportedly purchasing bananas from growers using pesticides in Guatemala has reportedly been filed in a California federal court. According to a Hagens Berman news release, the suit, filed on November 13, 2012, alleges that Dole’s supplier destroyed wetlands and poisoned water sources. Steve Berman said, “Dole promised its customers it had an ‘unwavering commitment’ to environmental responsibility. Yet, it gave its business to a plantation that showed a complete disregard for the local environment.” See Hagens Berman Press Release, November 13, 2012.
The owners of the California-based Hallmark Meat Packing Co. have reportedly settled claims that they committed fraud under the False Claims Act (FCA) by supplying ground beef to school lunch programs without meeting contractual commitments to treat their animals humanely. The Humane Soc’y of the U.S. v. Hallmark Meat Packing Co., No. 08-00221 (C.D. Cal., partial settlement announced November 16, 2012). The Humane Society of the United States (HSUS) brought the suit after it discovered and videotaped animal abuse at the meatpacking facility. Videotape of employees abusing non-ambulatory animals at the slaughterhouse resulted in the recall of 143 million pounds of beef in February 2008. The U.S. Department of Justice (DOJ) intervened in the litigation, which also involves the Westland Meat Company and other individual defendants. According to HSUS, Donald Hallmark Sr. and Donald Hallmark Jr. have agreed to pay $304,000 from their personal assets and will make structured payments…
A federal court in California has certified a nationwide class and Washington subclass of individuals who received purportedly unsolicited text messages sent by OnTime4U to advertise Papa John’s pizza products. Agne v. Papa John’s Int’l, Inc., No. 10-1139 (W.D. Wash., decided November 9, 2012). An appeal was filed before the Ninth Circuit on November 26. According to the court, “OnTime4U apparently told Papa John’s franchisees that it was legal to send texts without express customer consent because there was an existing business relationship between the customers and the Papa John’s restaurants. Certain Papa John’s franchisees, including at least some of the Rain City Defendants, provided OnTime4U with lists of telephone numbers of individuals who had purchased pizza from them. Those lists were generated out of the PROFIT system, a proprietary database that Papa John’s describes as a ‘point of sale data entry system.’ . . . OnTime4U removed landline numbers from…
A federal court has agreed to certify a class of California consumers allegedly misled by representations that AriZona Iced Tea® is “Natural” because it contains the processed, man-made ingredients high-fructose corn syrup (HFCS) and citric acid. Ries v. Arizona Beverages USA LLC, No. 10-01139 (N.D. Cal., order entered November 27, 2012). But the court granted the certification motion “for the purpose of injunctive and declaratory relief only” thus foreclosing the recovery of “monetary damages, including restitution, refund, reimbursement and disgorgement.” The named plaintiffs had sought certification under Federal Rule of Civil Procedure 23(b)(2), which “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.” According to the court, the claim for monetary relief predominates the complaint, and the plaintiffs “seek individualized awards of monetary restitution which would require individualized assessments of damages based on how many products the class member had…
A federal court in California recently granted in part and denied in part the Hershey Co.’s motion to dismiss putative class claims alleging that the chocolate maker violates consumer fraud laws by making unlawful nutrient content, “healthy” and antioxidant claims on product labels; failing to comply with chocolate product standards of identity or to use common names for ingredients; making unlawful sugar-free claims; and using improper serving sizes. Khasin v. The Hershey Co., No. 12-01862 (N.D. Cal., order entered November 9, 2012). Because the plaintiff’s claims were based on parallel state laws that “mirror” relevant sections of the Food, Drug, and Cosmetic Act (FDCA) and the Nutrition Labeling and Education Act, the court determined that they were not preempted. In this regard, the court noted, “complying with the demand requested by Plaintiff in this cause of action would not require that Defendant undertake food labeling or representation different from the…
The First Circuit Court of Appeals has upheld a jury verdict tracing the source of E. coli-contaminated beef to Greater Omaha Packing Co. thus sustaining a third-party indemnification claim against it. Long v. Fairbank Reconstruction Corp. v. Greater Omaha Packing Co., No. 12-1412 (1st Cir., decided November 21, 2012). Two Maine residents sickened in the outbreak settled for $500,000 with Fairbank Reconstruction, which had purchased the meat from Greater Omaha and further processed it for sale in retail-sized packages by grocery stores. Fairbank sought indemnification from Greater Omaha, and the trial focused for the most part “on the ‘traceback’ analyses that led Fairbank’s experts to conclude that the contaminated meat could only have come from the [Greater Omaha] combos and not from another supplier’s product.” The court found that “ample evidence” supported the jury’s conclusion that Greater Omaha was the source of the E. coli contamination that sickened the two…
The U.K. Advertising Standards Authority (ASA) has upheld three challenges to marketing claims made by Santa Monica, California-based Neurobrands LLC about its line of “Neuro” beverages. Lodged in August 2011 before Commission Regulation (EU) No. 432/21012 established a list of permitted health claims for foods, the complainants argued that the claims appearing on Neurobrands’ website and posters were misleading, unsubstantiated and “misleadingly implied that a widespread vitamin D deficiency in women existed and that the product NeuroSun could treat that deficiency.” Upholding the three complaints, ASA barred the advertisements and advised Neurobrands “to seek advice before making future health and nutritional claims for foods, given the transitional period following the Regulations coming into force.” According to ASA, Neurobrands defended the “mental performance” claim for its NeuroSonic beverage by citing the European Food Safety Authority’s (EFSA’s) “positive opinions” for caffeine and vitamin B12 with regard to “mental functions,” while noting that…
Canadian Governor General David Johnson has approved through royal assent the Safe Food for Canadians Act (SFCA), which aims to improve food safety by focusing on unsafe practices, import surveillance and food traceability. Passed unanimously by the House of Commons, the act consolidates some of the Canadian Food Inspection Agency’s (CFIA’s) existing food commodity statutes—including the Fish Inspection Act, Meat Inspection Act, Canada Agricultural Products Act, and Consumer Packaging and Labeling Act—although the Food and Drug Act will continue to provide “overarching protection for consumers from any foods that are unsuitable for consumption, including those marketed exclusively within provinces.” In particular, SFCA expands CFIA’s authority to address food safety risks, deter deceptive practices and develop regulations for tracing and recalling food. The act also gives CFIA the authority to certify all Canadian food commodities destined for export and reinforces import controls by “including powers to register or license importers,” with…
The European Food Safety Authority (EFSA) has published an inventory of its activities on bees and bee health as part of a forthcoming report to the European Commission’s Directorate-General for Research and Innovation. Spurred by a worldwide decline in the bee population, the agency created a task force with expertise in pesticides, animal health and welfare, genetically modified organisms (GMOs), and plant health “to provide risk managers with comprehensive advice in the area of bee health.” In compiling the inventory, the task force identified 355 bee-related scientific outputs that EFSA has already published or developed, with the majority of these outputs involving applications for regulatory products such as pesticides and GMOs. “With its mandate to improve EU food safety and to ensure a high level of consumer protection, EFSA has a responsibility to protect bees and the ecosystem services they provide to humans,” stated the agency in a November 20,…
