A California appeals court has determined that the Office of Environmental Health Hazard Assessment (OEHHA) may not add styrene or vinyl acetate to the Proposition 65 (Prop. 65) list of chemicals known to the state to cause cancer because they have been identified as “possible” but not known carcinogens. Styrene Info. & Research Ctr. v. OEHHA, No. C064301 (Cal. Ct. App., 3d Dist., decided October 31, 2012). Styrene is used in food packaging. The International Agency for Research on Cancer (IARC) had categorized the substances as Group 2b chemicals, which are “possibly” carcinogenic to humans, based on less than sufficient evidence of carcinogenicity in experimental animals. The court acknowledged that the California Health and Safety Code requires that the Prop. 65 list contain “at a minimum, the substances identified by reference in Labor Code section 6382, subdivision (d),” which addresses “hazardous substances” that extend “beyond those that cause cancer or…
After removing to federal court a defamation lawsuit brought by the company that makes lean finely textured beef (LFBT), ABC News has reportedly filed a motion to dismiss claiming that its news stories referring to the product as “pink slime” are protected speech under the First Amendment. Beef Products, Inc. v. Am. Broadcasting Cos., Inc., No. 12-04183 (D.S.D., filed October 24, 2012). Additional information about the lawsuit appears in Issue 453 of this Update. According to the news company’s motion, “Pink slime is exactly the sort of ‘loose, figurative, or hyperbolic language’ that courts recognize demands protection under the First Amendment.” ABC reportedly contends that the lawsuit challenges the rights of news organizations to “explore matters of obvious public interest—what is in the food we eat and how that food is labeled.” See Reuters, October 31, 2012.
A federal court in California has approved the settlement of class claims that will require Burger King Corp. to remove barriers to wheelchair and scooter access at more than 75 of the restaurants it leases to franchisees in the state and pay $19 million to the settlement class. Vallabhapuapu v. Burger King Corp., No. 11-00667 (N.D. Cal., decided October 29, 2012). This is the second settlement of Americans with Disabilities Act claims against the company; the first involved 10 certified classes and 10 alleged noncompliant restaurants in California. Each individual who files a claim by November 15, 2012, will take a pro rata share of the settlement for up to six visits to a Burger King restaurant “where he or she encountered a barrier to access.” As of mid-October, 620 claims had been filed with an average recovery expected to be nearly $5,000 per store visit, based on an adjusted…
A federal court in Illinois has dismissed a putative class action filed against a nutritional supplement company by a Muslim woman who alleged that the company misled consumers by failing to disclose that some of its products contain an animal-based product. Lateef v. Pharmavite LLC, No. 12-5611 (N.D. Ill., decided October 24, 2012). The court found the consumer-fraud claim preempted and determined that the named plaintiff lacked standing to rely on allegations relating to the company’s web-based advertising because she did not visit the Website before purchasing the product. The plaintiff also abandoned her federal law-based claim. According to the court, the plaintiff has dietary restrictions that prohibit her from eating certain animal-based food products such as pork. She allegedly purchased the defendant’s Nature Made® Vitamin D tablets after carefully reading the product label to ensure it did not contain animal byproducts. Her complaint alleges that the tablets were coated…
Safe Work Australia, a government agency lacking regulatory authority, has recommended that multi-walled and single-walled carbon nanotubes be classified as hazardous unless they can be shown, on a case-by-case basis with toxicological or other data, to merit a different classification. The agency recently released a report titled “Human Health Hazard Assessment and Classification of Carbon Nanotubes,” which concludes that the recommended classification is supported by the available evidence. Specifically, Safe Work Australia, seeks the classification “Harmful: Danger of serious damage to health by prolonged exposure through inhalation.”
The European Food Safety Authority (EFSA) recently held a one-day meeting with scientific experts, member states and other Advisory Forum participants “to exchange each other’s previous or ongoing work related to the safety assessment of bisphenol A (BPA).” Part of the agency’s continuing BPA evaluation, the meeting covered previous risk appraisals and outlined EFSA’s “developing approach” to the next opinion scheduled for completion in May 2013. It also featured members of other EFSA committees who discussed BPA safety assessments undertaken for medical devices and industrial chemicals, as well as experts from individual countries who described their work in the following areas: (i) “human exposure to BPA”; (ii) “current levels of BPA in food and other sources”; (iii) “analytical methods”; (iv) “non dietary sources of exposure to BPA”; and (v) “recent studies on the toxicity of BPA, including those related to reported low dose effects of BPA.” According to EFSA, the…
The Government Accountability Office (GAO) has issued a report recommending that the Food and Drug Administration (FDA) revise its approach when comparing foreign food safety systems with the U.S. system to better ensure the safety of imported food. Under the FDA Food Safety Modernization Act, FDA’s enhanced oversight of food imports includes express authority to implement a system for accrediting third parties like foreign governments and private auditing firms to certify foreign food facilities’ compliance with U.S. food safety requirements. The agency has apparently faced some challenges doing so. According to GAO, FDA has already started assessing selected foreign food safety systems to determine if they provide the same level of public health protection as domestic resources. But FDA has also stated “that it needs new approaches to improve its oversight of imported food that take into account the entire food supply chain and that it needs to push prevention…
U.S. Senators Richard Durbin (D-Ill.) and Richard Blumenthal (D-Conn.) have for the third time this year challenged the Food and Drug Administration (FDA) “to take immediate action” to address public concerns about energy drinks. In their October 26, 2012, letter to FDA, the senators write that they are “extremely concerned by reports of five deaths following the consumption of Monster energy drinks and a recent study showing that many energy drinks labels do not provide caffeine information to consumers.” Durbin and Blumenthal’s letter refers to a new study issued by Consumer Reports allegedly revealing that five of the 27 top-selling energy drinks contain caffeine at levels at least 20 percent above the listed amounts, with 11 beverages failing to specify caffeine content altogether. “We do not know enough about the effect of caffeine on children and young adults, yet energy drinks are marketed directly to kids without the oversight that…
Brigham and Women’s Hospital (BWM) has reportedly walked back a recent study claiming to link aspartame with an increased risk of leukemia, non-Hodgkin lymphoma (NHL) and other blood-related cancers. Published ahead of print in the American Journal of Clinical Nutrition, the study analyzed diet data from more than 77,000 women and 47,000 men enrolled in the Nurses’ Health Study and Health Professionals Follow-Up Study. The results apparently suggested “a positive association between diet soda and total aspartame intake and risks of NHL and multiple myeloma in men and leukemia in both men and women,” although “[a] higher consumption of regular sugar-sweetened soda was associated with higher risk of NHL and multiple myeloma in men but not in women.” Eva Schernhammer, et al., “Consumption of artificial sweetener—and sugar-containing soda and risk of lymphoma and leukemia in men and women,” American Journal of Clinical Nutrition, October 2012. But BWH has since cast…
A recent study has reportedly claimed that “soft drink intake is associated with higher risk of ischemic stroke for women.” Ehab Eshak, et al., “Soft drink intake in relation to incident ischemic heart disease, stroke and stroke subtypes in Japanese men and women: the Japan Public Health Centre-based study cohort,” American Journal of Clinical Nutrition, October 2012. After analyzing food-frequency questionnaires and data from approximately 40,000 Japanese men and women aged 40-49 years, researchers evidently concluded during an 18-year follow-up that “soft drink intake was positively associated with risk of total stroke and more specifically ischemic stroke for women.” At the same time, however, the results suggested “a nonsignificant inverse trend for risks of total and ischemic strokes…for men” that “was weakened after the exclusion of early incident cases or after the exclusion of participants with baseline comorbidities.” “There was no consensus about why an adverse effect of soft drink…
