“U.S. food companies are reaching children by embedding their products in simple and enticing games for touch-screen phones and tablets,” writes The Wall Street Journal’s Anton Troianovski in this September 18, 2012, article examining how food and beverage manufacturers allegedly use mobile games and phone apps to sidestep “government and public pressure to limit advertising to minors on TV and the Web.” According to Troianovski, some of these companies have argued that food-branded apps are a cost-effective marketing tool that would not violate any advertising restrictions because parents much purchase the games first. “We don’t view it as our place to be a superparent—the nanny of the parents or the children to say what products that can see and what games they can play,” Children’s Food and Beverage Advertising Initiative Director Elaine Kolish told the Journal. Troianovski notes, however, that the proliferation of such apps has raised questions among consumer…
A recently released documentary short, titled “Unjustified: The Unchecked Power of America’s Justice System,” focuses on the fallout from a 2008 immigration raid on a kosher meatpacking plant in Iowa. Former Agriprocessors executive Sholom Rubashkin was later charged with numerous violations, including violating child labor laws, identity theft and bank fraud. He was convicted on 86 financial fraud counts and sentenced to 27 years in prison, and his case has been appealed to the U.S. Supreme Court. The documentary was apparently directed by an Emmy-nominated producer who has worked on Comedy Central’s “The Daily Show,” and Michael Moore’s Bravo TV series “The Awful Truth.” Additional information about Rubashkin’s case appears in Issue 439 of this Update. See The Des Moines Register, September 19, 2012.
The Australian Medical Association (AMA) has released a 60-page report in conjunction with its National Summit on Alcohol Marketing to Young People that accuses industry of targeting children with new media tactics as well as alcohol-flavored food and cosmetic products. Urging “more robust policy and stronger regulatory oversight,” the report aims to document current alcohol advertising tactics in Australia, examine the impact of these tactics on drinking patterns, and make a case for regulatory and statutory reform. In particular, the report claims that “the introduction of digital technologies has opened up new platforms for marketing and promotion, with alcohol companies aggressively harnessing the marketing potential of online video channels, mobile phones, interactive games, and social networks such as Facebook and Twitter.” It also argues that alcohol-flavored foods and cosmetics, such as vodka-flavored lip gloss, not only “circumvent most existing regulations regarding marketing and the placement of alcoholic products” but introduce…
The Mercury Policy Project (MPP) and a coalition of other consumer groups have released a report claiming that canned albacore tuna sold in U.S. schools may contain higher mercury levels than those reported by the Food and Drug Administration (FDA). Of the 59 canned tuna samples that MPP tested from this market sector, 48 were “light” tuna products representing six brands and 11 were “white” or albacore tuna products representing two brands. Although the report acknowledged that “the mercury content of these products is similar to what has been reported for supermarket canned tuna by other investigators and by [FDA],” it nevertheless alleged that the albacore tuna samples “averaged 0.560 µg/g, much higher than FDA’s reported average of .350 µg/g.” The results also purportedly indicated a high variably in mercury content across tuna samples, revealing, for example, that U.S-caught light tuna “had the lowest country-oforigin average mercury level, 0.086 µg/g,”…
After testing more than 200 rice products, Consumer Reports purportedly found levels of total arsenic, both organic and inorganic, far in excess of the federal limit of 10 parts per billion (ppb) for arsenic in drinking water. Among the products tested were baby cereals, crackers, milk, pasta, flour, and an array of brown, white and basmati rice. One infant cereal product apparently contained up to 329 ppb of arsenic. Consumer Reports recommended that consumers cook their rice in twice the amount of water, 6 cups to 1 cup of rice, eat a varied diet and experiment with other grains that are less prone to absorbing arsenic from soil and water as they grow. Its investigation included a data analysis by researchers experienced in National Health and Nutrition Examination Survey (NHANES) analyses. They found that of 3,633 rice consumers who participated in NHANES, those consuming one rice food item before their urine…
Shook, Hardy & Bacon Public Policy Partner Phil Goldberg has co-authored, with the current chair of the New Jersey State Bar Association’s Animal Law Committee, a commentary titled “Barking Up the Wrong Tree,” published in the September 17, 2012, issue of the New Jersey Law Journal. The commentary discusses a New Jersey Supreme Court ruling denying emotional distress damages to a woman whose dog was attacked by a neighbor’s dog and died. Noting that more and more pet owners are seeking these types of damages when their pets are injured or killed, the authors contend that limiting pet owners to economic damages will best protect their pets in the long run. According to the authors, “[p]et economics is simple. At litigation-inflated prices, many owners will no longer be able to afford services and products their pets need. The quality of pets’ lives will be lowered, and in some cases, owners…
A California resident has filed a putative nationwide class action with a California subclass against a company that makes low-calorie frozen desserts that allegedly have as much as 68 percent more calories than touted on the product label. Freeman v. Arctic Zero, Inc., No. 12-2279 (S.D. Cal., filed September 18, 2012). Similar putative class claims filed by another California resident in August are summarized in Issue 451 of this Update. According to plaintiff Brenda Freeman, “[c]onsumers do not receive the benefit of their bargain because the actual calorie content of the Frozen Desserts is up to 68 percent higher than Arctic Zero prominently represents on the front of the product packaging, on the nutritional label, and in Arctic Zero’s other marketing materials.” She cites testing on the company’s Chocolate Peanut Butter and Vanilla Maple products showing them to be higher in calories than the 150 calories per pint on package…
A Florida resident has filed a putative statewide class action alleging that Frito-Lay falsely labels its snacks, including “Bean Dip products,” as “ALL NATURAL” despite the use of ingredients—particularly soy—containing genetically modified organisms (GMOs). Altman v. Frito-Lay N. Am., Inc., No. 12-61803 (S.D. Fla., filed September 13, 2012). The gist of the complaint is that products containing GMOs should not be labeled “all natural” unless they also disclose that the products contain GMOs. The plaintiff contends that she would not have purchased the company’s bean dip if she had known the company “could not support its claim that the Product is all natural.” Seeking to represent a class of Florida consumers who purchased Frito-Lay “All Natural” products over the past four years, the plaintiff alleges violations of the state’s Deceptive and Unfair Trade Practices Act and unjust enrichment. She requests injunctive relief, restitution, actual damages, punitive damages, attorney’s fees, costs,…
The day after a California court apparently refused to approve the settlement of class claims against the company that makes “All Natural Ben & Jerry’s Ice Cream,” an Illinois resident filed a putative class action against the company in a New Jersey federal court, alleging that the product contains many unnatural ingredients including those that are genetically modified. Tobin v. Conopco, Inc., No. 12-5881 (D.N.J., filed September 13, 2012). The named plaintiff seeks to represent a nationwide class of individuals who purchased the products since 2006 relying on the allegedly false “all natural” label. According to the complaint, the Center for Science in the Public Interest (CSPI) tested the company’s products in 2010 and found that they contain “alkalized cocoa, corn syrup, partially hydrogenated soybean oil, or other ingredients that either don’t exist in nature or that have been chemically modified.” CSPI’s letter to the manufacturer, claiming that the products…
Finding that California law applies to a dispute between Costco Wholesale Corp. and Nationwide Mutual Insurance Co., a federal court has dismissed Costco’s claims for violations of Washington state law and for bad faith coverage by estoppel arising out of the insurer’s refusal to handle claims of personal injury from cheese that Costco sold. Costco Wholesale Corp. v. Nationwide Mut. Ins. Co., No. 11-1550 (W.D. Wash., Seattle, decided September 20, 2012). The court determined that, under the “most significant relationship” test applied in the context of a conflict of laws, “the most significant contacts between Costco and Nationwide occurred in California.” Because California law does not provide relief as to a number of Costco’s claims, the court dismissed them but gave the company the opportunity to amend the complaint by November 1, 2012. If it does not do so, the matter will be dismissed.
