The New England Journal of Medicine (NEJM) has published a series of studies and commentary on the purported health effects of consuming sugar-sweetened beverages. The American Beverage Association issued a statement contending that studies focusing “solely on sugar-sweetened beverages” as an alleged cause of obesity “or any single source of calories, do nothing meaningful to help address this serious issue. The fact remains: sugar-sweetened beverages are not driving obesity. By every measure, sugar-sweetened beverages play a small and declining role in the American diet.” The studies included Janne de Ruyter, et al., “A Trial of Sugar-free or Sugar-Sweetened Beverages and Body Weight in Children,” (concluding, “[m]asked replacement of sugar-containing beverages with noncaloric beverages reduced weight gain and fat accumulation in normal-weight children.”); Cara Ebbeling, et al., “A Randomized Trial of Sugar-Sweetened Beverages and Adolescent Body Weight,” (concluding, “[a]mong overweight and obese adolescents, the increase in [body mass index] was smaller…
“Are you a food addict?,” asks a September 20, 2012, New York Times “Well” blog post featuring a “food addiction” quiz . Citing several food studies allegedly suggesting “that food and drug addiction have much in common, particularly in the way that both disrupt the parts of the brain involved in pleasure and self-control,” columnist Tara Parker-Pope offers a shortened version of the Yale Food Addiction Scale created by researchers at Yale University’s Rudd Center for Food Policy and Obesity. The quiz asks readers to respond to such questions such as, “I find myself consuming certain foods even though I am no longer hungry” and “I keep consuming the same types or amounts of food despite significant emotional and/or physical problems related to my eating.” Based on the inputted responses, the applet then provides a food addiction score ranging from “not addicted” to “possible food addiction” indicating that “you may…
Employment law practitioners are, according to a recent article, predicting an increase in the number of obesity-related claims filed against employers under the Americans with Disabilities Act (ADA). The 2008 amendments have made it easier for employees to prevail in these cases, and a trio of claims filed and resolved in recent months demonstrates that the Equal Employment Opportunity Commission and courts are recognizing obesity as a disability in itself, rather than focusing on some underlying physiological condition as the basis for the employees’ disability. Settlements of obesity claims in Texas and Louisiana have resulted in payments of $55,000 and $125,000, respectively, while the Montana Supreme Court determined that a physiological disorder underlying morbid obesity is not necessary for a disability claim under a state law that mirrors the ADA. See The National Law Journal, September 24, 2012.
The National Bureau of Economic Research (NBER) has issued a paper titled “Projecting the Effect of Changes in Smoking and Obesity on Future Life Expectancy in the United States.” Funded by the Social Security Administration and a grant from the National Institute on Aging, the research applied Markov modeling to National Health and Nutrition Examination Surveys data from 1999 to 2008 to conclude that reductions in smoking rates coupled with increases in obesity will result in a gain of nearly one year of life expectancy for men and just a quarter of a year’s gain for women. According to the authors, “By 2040, male life expectancy at age 40 is expected to have gained 0.92 years from the combined effects. Among women, however, the two sets of effects largely offset one another throughout the projection period, with a small gain of 0.26 years expected by 2040.” The researchers also project…
The International Association for the Study of Obesity (IASO) has released a report criticizing the food and beverage industry’s efforts to reduce marketing to children in the European Union. Part of the StanMark Project, which receives EU funding, A Junk-Free Childhood 2012 focuses on the EU Pledge signed by 20 companies that agreed to stop marketing products to children younger than age 12 and to submit to independent monitoring. Citing data from the 2011 EU Pledge Monitoring Report, IASO notes a “disappointing” 29 percent decline in the number of advertisements for “non-compliant” products that were viewed by children between January and March 2011 as compared to those viewed between January and March 2005. “While for some countries there were significant decreases in advertising (e.g. in Poland, Ireland and France), in other countries significant increases were recorded, including Slovenia (up 26%) and the Netherlands (up 38%),” states the report. “The problem…
Naked Wines LLC has filed an action against Nakedwines.com, Inc. and Groupon, Inc. alleging that they have infringed its “family of erotically-themed marks” including NAKED WINERY®, NAKED WINERY VIXEN®, NAKED WINERY NAUGHTY®, and NAKED WINERY DIVA®. Naked Wines LLC v. Nakedwines. com, Inc., No. 12-01717 (D. Or., filed September 21, 2012). According to the complaint, Oregon-based Naked Wines has used the marks since 2005 and has “developed and maintains customers throughout the United States.” The marks have purportedly “become an asset of substantial value as a symbol of Plaintiff and its products.” Nakedwines.com, located in Napa, California, is allegedly “the U.S. arm of a UK-based, online company that sells and distributes wine from multiple producers.” According to the plaintiff, defendant Nakedwines.com, which is working with various producers to sell 400,000 cases of wine in the United States in 2013 and planning to open a winery in California under the name “Naked…
Chipotle Mexican Grill, Inc. has filed another infringement action against a retailer allegedly selling a chicken sandwich combo using the CHIPOTLE® trademark. Chipotle Mexican Grill, Inc. v. Jack in the Box, Inc., No. 12-02511 (D. Colo., filed September 21, 2012). Information about the trademark infringement lawsuit Chipotle filed in April against Kroger Co. appears in Issue 435 of this Update. In the new action against Jack in the Box, Chipotle alleges that when asked to cease using the CHIPOTLE® marks to promote its chicken sandwich, the defendant responded that its use of the word did not infringe the marks and that it did not currently plan to use the mark, which was used in connection with a limited time offer, in the future. Still, according to the complaint, the defendant “suggested that it would use the CHIPOTLE Marks in the future.” Claiming that its marks have “acquired substantial goodwill and are…
The Humane Society of the United States (HSUS) has sued the U.S. Department of Agriculture (USDA) seeking to end payments made to the National Pork Producers Council (Pork Council) for the purchase of the registered mark “Pork, The Other White Meat.” HSUS v. Vilsack, No. 12-01582 (D.D.C., filed September 24, 2012). According to the complaint, which details the circumstances leading to the mark’s creation, development and use, the Pork Council should not have retained ownership of the mark, and the $60-million, 20-year contract for its purchase should have been terminated when USDA decided to retire the mark and create a new one. HSUS contends that the contract is funded with pork-producer checkoff program dollars, which cannot be used for lobbying. Because the Pork Council is a lobbying organization, HSUS claims that the ongoing payments under the purchase agreement violate federal law. HSUS seeks a declaration that these expenditures of checkoff…
A federal court in New York has dismissed with prejudice claims that Mario Batali’s Del Posto restaurant allegedly retained portions of workers’ tips in violation of federal and state labor laws after approving an agreement requiring the defendants to pay $1.15 million into a settlement fund and provide workers with training and paid vacation time and sick leave. Amastal v. Pasta Resources, Inc., No. 10-07748 (S.D.N.Y., order entered September 24, 2012). Additional information about the lawsuit can be found in Issue 368 of this Update. The 31 plaintiffs in this lawsuit had opted out of a similar class action involving captains, servers, waiters, bussers, runners, backwaiters, bartenders, and barbacks at Del Posto and seven other restaurants; the class action apparently concluded with a $5.25 million settlement deal preliminarily approved in May. Details about the class action appear in Issues 361 and 430 of this Update. The deal also apparently releases claims…
A federal court in New York has denied a motion to dismiss a consumer fraud action against the company that makes Four Loko®, a beverage allegedly containing high alcoholic and caffeine content and sold without disclosing “possible negative health effects.” Yourth v. Phusion Projects, LLC, No. 11-1261 (N.D.N.Y., decided September 27, 2012). The defendant contended that the court lacked subject matter jurisdiction on the ground of mootness “because defendant has offered ‘to fully refund any amounts that Plaintiff paid for Four Loko as well as any fees and costs he incurred.’” Noting that the circuit courts have split over whether a defendant can moot a putative class action by offering to satisfy the plaintiff’s demand before a motion for class certification is filed, the court concluded that “unless plaintiff has unduly delayed in moving for certification, defendant’s offer of full relief does not moot the action.” According to the court,…
