A federal court in California has denied the ex parte request of foie gras producers to temporarily halt California’s enforcement of a ban on the sale of any product that is the result of force-feeding a bird for the purpose of enlarging its liver beyond normal size. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12-5735 (C.D. Cal., order entered July 18, 2012). Additional information about the challenge to California’s foie gras ban appears in Issue 446 of this Update. The court also established a briefing schedule on the plaintiffs’ motion for preliminary injunction that will culminate in an August 29, 2012, hearing. Meanwhile, California restaurateurs have reportedly found ways around the state’s ban. A restaurant on a former military base in San Francisco, now owned by the National Park Service, apparently began offering the dish on its menu, claiming that its location on federal land makes it…
The Ninth Circuit Court of Appeals has found the proposed cy pres distribution inappropriate and unacceptably vague and the attorney’s fees unreasonable in a settlement of class claims that the Kellogg Co. violated consumer protection laws by advertising its Frosted Mini-Wheats® cereal as a product that was clinically shown to improve children’s attentiveness by nearly 20 percent. Dennis v. Kellogg Co., Nos. 11-55674, -55706 (9th Cir., decided July 13, 2012). Additional information about the case appears in Issues 368 and 392 of this Update. The company’s settlement of related false-advertising charges filed by the Federal Trade Commission is discussed in Issue 301 of this Update. Under the agreement, class members could recover up to a maximum of $15, and any remaining funds would be donated to “charities chosen by the parties and approved by the Court pursuant to the cy pres doctrine.” According to the court, about $800,000 had been…
Responding to a question certified by a federal district court, a divided Montana Supreme Court has said that obesity which is not the symptom of a physiological condition may be a “physical or mental impairment” as the terms are used in the Montana Human Rights Act. BNSF Ry. Co. v. Feit, No. OP 11-0463 (Mont., decided July 6, 2012). The issue arose after an extremely obese applicant for a conductor-trainee position was told he would not be considered for the position unless he lost 10 percent of his body weight or completed certain medical examinations, including a $1,800 sleep study, at his own expense. The applicant successfully pursued an administrative remedy through the state department of labor and industry alleging that the railway defendant had illegally discriminated against him because of perceived disability. He was awarded damages for lost wages and benefits, prejudgment interest and emotional distress. On appeal, the…
The Maine Supreme Judicial Court has adopted the “reasonable consumer expectation” test to determine whether a boneless turkey product allegedly containing a bone was defective. Pinkham v. Cargill, Inc., No. 11-340 (Me., decided July 3, 2012). So ruling, the court vacated the lower court’s grant of summary judgment and remanded for further proceedings. Plaintiff Stanley Pinkham allegedly consumed a hot turkey sandwich during his break. The defendant allegedly manufactured the boneless turkey product in the sandwich. In the middle of or immediately after eating the sandwich, Pinkham allegedly experienced severe and sudden pain in his upper abdominal area and thought that he might be having a heart attack. His physicians later determined that in their opinion he most likely had an “esophageal tear or perforation.” Pinkham sued, alleging that this was a result of bone in the boneless turkey. The defendant moved for summary judgment, which the trial court granted while noting that Maine had…
The European Food Safety Authority’s (EFSA’s) Panel on Dietetic Products, Nutrition and Allergies (NDA) has apparently concluded that scientific evidence supports an Article 13.5 health claim related to cocoa flavanols and normal blood flow. Submitted by chocolate manufacturer Barry Callebaut AG under Regulation (EC) No 1924/2006, the health claim application cited several human intervention studies that evidently showed “a cause and effect relationship” “between the consumption of cocoa flavanols and maintenance of normal endothelium-dependent vasodilation.” In particular, NDA noted that a person in the general population could obtain the claimed effect by consuming 200 milligrams of cocoa flavanols daily through either 2.5 grams (g) of high-flavanol cocoa powder or 10 g of high-flavanol dark chocolate, “both of which can be consumed in the context of a balanced diet.” The panel has thus approved the following wording as reflective of the scientific evidence: “Cocoa flavanols help maintain endothelium-dependent vasodilation, which contributes…
The European Food Safety Authority (EFSA) has issued new guidance for the submission of food additive applications that reflects recent scientific advances as well as “the latest risk assessment principles.” Developed by EFSA’s Panel on Food Additives and Nutrient Sources Added to Food, the new data submission guidelines aim to streamline the testing process while still generating “the data necessary to demonstrate the high level of consumer safety required.” Food companies seeking market authorization from the European Commission must provide EFSA with “the necessary information and data supporting the safety of the food additive.” In particular, the guidance introduces “a new tiered approach for the risk assessment of food additives” that will assist applicants with their toxicological testing strategy. Under the new guidance, Tier 1 tests must meet “a minimal dataset applicable to all compounds,” while Tier 2 testing “will be required for compounds which are absorbed, demonstrate toxicity or…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has posted on its website a report from the 35th Session of the Codex Alimentarius Commission that convened in Rome earlier in July 2012. In addition to adopting a number of standards on food additives, food hygiene guidelines, maximum levels of melamine for liquid infant formula, and maximum pesticide residue levels, the Commission agreed to update a scientific review of the use of recombinant bovine somatotropin (rBST) to stimulate milk production in dairy cows. Maximum residue levels have been stalled at Step 8 since 1995, and debate over the issue apparently continues. Those opposed to the use of rBST cited animal health, welfare and possible anti-microbial resistance, while the United States and others contend that these issues exceed the Codex’s scope, the science is sufficient and no food safety issues remain.
The U.S. Department of Agriculture (USDA) has reportedly agreed to fund produce safety inspections through the end of 2012 despite the government’s failure to include the agency’s Microbiological Data Program (MDP) in next year’s budgets. According to media sources, neither the Obama administration nor Congress allocated resources for the 11-year-old program, which coordinates with local officials to screen alfalfa sprouts, cantaloupe, cilantro, hot peppers, lettuce, spinach, and tomatoes for pathogens such as E. coli (STEC), E. coli 0157:H7, Listeria monocytogenes, and Salmonella. Responsible for 30 recalls since 2009, the MDP has garnered praise from consumer groups that have since decried its imminent demise while lambasting public officials for dispensing with the $5 million needed to keep the program running. “It’s a small sum of money in the government sense,” David Plunkett, senior staff attorney for the Center for Science in the Public Interest, told reporters. “For the government, it’s not…
The Food and Drug Administration (FDA) has issued a final rule amending the food additive regulations at 21 CFR part 177 “to no longer provide for the use of polycarbonate (PC) resins,” including bisphenol A (BPA), in infant feeding bottles or spill-proof sippy cups. Effective July 17, 2012, the final rule apparently responds to a petition filed by the American Chemistry Council (ACC), which claimed that “that baby bottles and sippy cups manufactured from PC resins are no longer being introduced into the U.S. market and that manufacturers of baby bottles and sippy cups have abandoned the use of PC resins in making these products.” After reviewing the submitted data and seven public comments addressing the petition, FDA concluded that the use of PC resins in these products has been “completely and permanently abandoned,” and agreed to amend the regulations accordingly. The agency has requested objections to the final rule…
Shook, Hardy & Bacon Agribusiness & Food Safety Practice Co-Chair Madeleine McDonough will participate in the American Conference Institute’s (ACI’s) “FDA & USDA Compliance Boot Camp: An In-Depth and Comprehensive Course on Regulatory Requirements for the Food and Beverage Industry,” scheduled for October 3-4, 2012, in Chicago. Joining a faculty of expert in-house counsel, regulatory officials and seasoned practitioners, McDonough will address “Preemption Fundamentals: Overview of Recent Case Decisions and How to Successfully Assert Federal Preemption.”
