Four migrant farmworkers have filed suit against farm labor contractors who allegedly “recruited undocumented field workers in Mexico and the United States to work on farms (‘growers’) and relied on a pattern of threats, violence, harassment, and indebtedness to force Plaintiffs and other migrant farmworkers to perform grueling, back-breaking manual labor as Defendants transported the workers between several states including Florida, Illinois, Georgia, Mississippi, and New York.” John Does I-IV v. Sunrise Labor Corp., No. 12-80883 (S.D. Cal., filed August 20, 2012). According to the complaint, the individual defendants face federal criminal charges for hiring unauthorized aliens. Among other matters, the anonymous plaintiffs allege that the defendants imposed debts on them—involving fees paid to “coyotes” to smuggle them across the border and charges for food, rent and remittances to their families—threatened them with injury or death, did not pay them compensation to which they were entitled, forced them to work when…
The Equal Employment Opportunity Commission (EEOC) has filed a Title VII civil rights action against a Burger King restaurant claiming that it failed to accommodate the religious beliefs of a Pentecostal Christian woman who sought to wear skirts or dresses to work instead of uniform pants. EEOC v. Fries Rest. Mgmt., LLC, No. 12-3169 (N.D. Tex., filed August 22, 2012). The employee was hired as a cashier and had allegedly been informed when she interviewed for the position that she could wear a skirt to work, an accommodation she required because she “adheres to an interpretation of the scripture that requires women to wear only skirts or dresses.” When she arrived at work for orientation in a skirt, she was told she could not wear it and would have to leave the store. According to the complaint, “The result of the foregoing practice has been to deprive Ashanti McShan of equal…
A California resident has filed a putative nationwide class action against a company that makes low-calorie frozen desserts, alleging that they do not, as advertised, contain just “150 calories per pint.” Michelle v. Arctic Zero, Inc., No. ___ (S.D. Cal., filed August 21, 2012). According to the complaint, Arctic Zero’s Vanilla Maple dessert “has 46% more calories than the 150 calories advertised on the product packaging and reflected on the nutritional label” and the company’s “Chocolate Peanut Butter has 68% more calories than the 150 calories advertised.” Claiming that she would not have purchased the products had she not been misled, the plaintiff alleges violations of California’s Unfair Competition Law (unlawful, unfair and fraudulent conduct), False Advertising Law and Consumers Legal Remedies Act, as well as unjust enrichment. She seeks preliminary and permanent injunctive relief; corrective disclosures; compensatory, consequential, statutory, exemplary, treble, and punitive damages; restitution; attorney’s fees; costs; and…
Contending that Monster Beverage Corp. either misled or failed to disclose that it was improperly advertising, marketing and promoting its Monster Energy® drinks and thus filed materially false and misleading financial statements, a putative securities class action has been filed against the company in a federal court in California. Rausch v. Monster Beverage Corp., No. 12-2058 (S.D. Cal., filed August 21, 2012). The filing follows news that an unnamed state attorney general subpoenaed company records in July 2012 seeking information about “the Company’s advertising, marketing, promotion, ingredients, usage and sale of its Monster Energy® brand of energy drinks.” Details about that action are included in Issue 450 of this Update. According to a news source, the company’s stock declined nearly 11 percent the day after Monster disclosed the investigation in a filing with the Securities and Exchange Commission. See Bloomberg, August 21, 2012.
Industry interests that lost their challenge to the listing of 4-MEI as a chemical known to California to cause cancer have abandoned the appeal they filed before the Third District Court of Appeals in February 2012. Cal. League of Food Processors v. OEHHA, No. C070406 (Cal. Ct. App., case complete August 15, 2012). Additional information about the challenge and trial court decision appears in Issues 420 and 429 of this Update. California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) added the chemical, commonly found in foods such as soy sauce, roasted coffee and the caramel coloring added to colas and beer, to the Proposition 65 (Prop. 65) list in January 2011.
A federal court in California has denied Chipotle Mexican Grill’s motion to dismiss putative class claims alleging that the company fraudulently represents that it uses only naturally raised meat in its menu items. Hernandez v. Chipotle Mexican Grill, Inc., No. 12-5543 (C.D. Cal., order entered August 23, 2012). According to the court, “Plaintiff need not show that he consumed non-naturally raised meat on one of his visits to Chipotle [because] the harm alleged [is that] Plaintiff purchased food at Chipotle, at a premium, based on Defendant’s representations that non-naturally raised meat was not used there.” The court also determined that the plaintiff adequately alleged a claim for fraudulent concealment and denied as premature that part of the defendant’s motion addressing the class allegations. The court did, however, order briefing on whether plaintiff’s counsel “would be adequate counsel to represent the class if a class were certified.” In this regard, the…
A divided Eighth Circuit Court of Appeals panel has reversed the dismissal of claims filed under the Federal Tort Claims Act (FTCA) by cattle producers alleging that a government employee negligently decimated their cattle herd by requiring that they plant a toxic seed mixture on pasture land enrolled in a conservation program; the court found that the negligence allegations were not barred by the discretionary-function exception to the FTCA’s waiver of sovereign immunity. Herden v. United States, No. 11-3530 (8th Cir., decided August 20, 2012). That exception bars liability for any claim based on the “exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” It applies where the action “involves an element of judgment or choice” and “the requisite judgment or choice is the type of government action Congress intended to…
The Food and Drug Administration (FDA) has issued its “Guidance for Industry: Questions and Answers Regarding the Final Rule, Prevention of Salmonella Enteritidis in Shell Eggs During Production, Storage, and Transportation.” Comments may be submitted at any time, although the guidance, with nonbinding recommendations for complying with a final rule that took effect in September 2009, has incorporated comments submitted after the draft guidance was published. Presented in a Q&A format, the guidance addresses compliance dates, the egg rule’s coverage, definitions, Salmonella Enteritidis prevention measures, testing, sampling, and registration requirements. See Federal Register, August 21, 2012. Noting that Americans consume 242 eggs per capita annually, New York University Nutrition Professor Marion Nestle draws attention to the guidance in her blog and cites a recent Canadian study claiming an association between the consumption of egg yolks and plaque formation in coronary arteries. She suggests that we should not “be eating so many eggs,”…
The Food and Drug Administration (FDA) has issued a final rule that amends regulations about concentrations of compounds of carcinogenic concern in the diet of food-producing animals and residues of carcinogenic concern in specific edible tissues. The changes clarify certain definitions “to enable the Center for Veterinary Medicine to consider allowing the use of alternative procedures to satisfy the DES [Diethylstilbestrol] Proviso without requiring the development of a second, alternative, set of terminology.” The changes take effect September 21, 2012. Among other matters, the amendment will change the existing emphasis in 21 CFR Part 500 on “no significant increase in the risk of cancer to the human consumer” to an emphasis on “the specific 1 in 1 million risk of cancer to the test animals approach.” See Federal Register, August 22, 2012.
The Food and Drug Administration (FDA) has responded to Senator Dick Durbin’s (D-Ill.) letter requesting that the agency take regulatory action “to address the rising health concerns around energy drinks” purportedly containing high levels of caffeine and other ingredients such as taurine, guarana and ginseng. Among other matters, in its August 10, 2012, letter, FDA suggests that research to date shows that “even when the consumption of energy drinks is considered, most of the caffeine consumed [in the United States] comes from what is naturally present in coffee and tea.” For most healthy adults, according to FDA, caffeine intake up to 400 mg per day is not associated with untoward health effects. Additional details about Durbin’s letter appear in Issue 435 of this Update. FDA’s generally recognized as safe (GRAS) regulation for caffeine applies to cola-type beverages; the agency “has not challenged the use of caffeine in other beverages at…
