Public health lawyer Michele Simon has published a June 2012 report that raises questions about the purported influence of food and banking corporations on the U.S. Department of Agriculture’s (USDA’s) Supplemental Nutrition Assistance Program (SNAP). Titled “Food Stamps: Follow the Money,” the report focuses on food manufacturers, food retailers and large banks with “a critical stake in debates over SNAP,” which Simon describes as “the largest, most overlooked subsidy in the farm bill.” In particular, she alleges that food industry lobbyists have joined with anti-hunger groups to oppose state and federal efforts to disallow soda, candy and snack food purchases under the program. “Among the most vocal opponents of health-oriented improvements to SNAP purchases are several national anti-hunger groups, each of which accepts significant funding from major players in the food industry,” opines Simon. “While it’s not clear exactly how such relationships might influence policy positions, the potential for conflict exists.…
A California resident has filed a putative class action against Ralphs Grocery Co. alleging that it breached its promise not to share the personal information that shoppers must provide to obtain a “Ralphs rewards Card”; only cardholders may purportedly take advantage of advertised store discounts. Heller v. Ralphs Grocery Co., No. BC486035 (Cal. Super. Ct., Los Angeles Cty., filed June 6, 2012). He contends that he would not have shopped at the grocery stores or applied for a rewards card “if not for Defendant’s misrepresentation and/or nondisclosure of the fact that it was selling and/or sharing its customers’ personal identification information.” According to the complaint, the defendant shares customer information with Kroger and with dunnhumby, a company that allegedly “performs data mining services for more than 350 million people in 25 countries on behalf of retailers” and “uses personal identification information and data from purchase transactions gleaned from the Ralph’s reward Card…
Seeking to represent a statewide class of product purchasers, a California resident has filed a putative class action against Costco, alleging that the company falsely sells its Kirkland Signature Kettle Brand Potato Chips®, which purportedly contain “more than 13 grams of fat per 50 grams,” with a “0 Trans Fat” label. Thomas v. Costco Wholesale Corp., No. 12-2908 (N.D. Cal., filed June 5, 2012). Citing 21 C.F.R. § 101.13(h), plaintiff Karen Thomas contends that the defendant is “prohibited from making the unqualified nutrient claims of ‘0 grams Trans Fat’ on its food products if they contain fat in excess of 13 grams, saturated fat in excess of 4 grams, cholesterol in excess of 60 milligrams, or sodium in excess of 480 mg per 50 grams, unless the product also displays a disclosure statement that informs consumers of the product’s fat, saturated fat and sodium levels.” She alleges that the product…
A Cuyahoga County, Ohio, court has reportedly determined that a state law prohibiting municipalities from regulating the ingredients used in prepared foods, such as restaurant meals and grocery or bakery takeout items, does not preempt Cleveland’s ordinance prohibiting retail food establishments from selling foods containing trans fats. Cleveland announced the ban in April 2011, and several months later, Ohio’s General Assembly amended the state’s budget with a provision prohibiting municipalities from restricting the food at food service establishments “based on the food nutrition information.” Cleveland sued the legislature in January 2012, contending that it had encroached on its home rule authority. City of Cleveland v. Ohio, No. cv-12- 772529 (Ohio Ct. Com. Pl., Cuyahoga Cty., decided June 11, 2012). Additional information about the lawsuit appears in Issue 422 of this Update. The court apparently agreed, noting in the case docket that the amendment was unconstitutional and that the city’s enactment…
A federal court in Florida has denied the Federal Trade Commission’s (FTC’s) request that it modify a stipulated final order resolving a 2006 dispute with Garden of Life, Inc. over purportedly unsubstantiated representations that its products could treat a range of serious diseases and their symptoms. FTC v. Garden of Life, Inc., No. 06-80226 (S.D. Fla., filed May 25, 2012). The parties had agreed that the company could make such claims if supported by “competent and reliable scientific evidence,” defined in the stipulated final order as “tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.” Claiming that the company was continuing to deceive consumers and that “the Stipulated Final Order has failed to…
The Second Circuit Court of Appeals has upheld an award of $10,000 in sanctions under Federal Rule of Civil Procedure 11 for the filing of a frivolous action related to trademark infringement litigation between companies that make and sell hoisin sauce. Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., Nos. 10-4931, 11-16 (2d Cir., decided June 13, 2012). Koon Chun prevailed, in part, on its claims of willful trademark infringement against Star Mark, based on Star Mark’s sale of counterfeit versions of Koon Chun’s hoisin sauce. A magistrate judge awarded damages and costs, and the Second Circuit affirmed. In the meantime, the parties were litigating Star Mark’s suit to cancel Koon Chun’s mark “on the theory that Koon Chun’s use of the word ‘hoisin’—which translates to ‘seafood’—was deceptive because the sauce did not contain seafood.” When considering this matter in a motion to amend…
On remand from the U.S. Supreme Court, the Ninth Circuit Court of Appeals has issued an order which reinstates a district court ruling that a California law regulating swine slaughterhouses and nonambulatory animals was preempted by federal law. Nat’l Meat Ass’n v. Harris, Nos. 09-15483 and -15486 (9th Cir., order entered June 8, 2012). Additional details about the case and the unanimous U.S. Supreme Court ruling appear in Issue 424 of this Update.
The New York City Board of Health and Mental Hygiene (DOHMH) has called a July 24, 2012, public hearing to gather feedback on Mayor Michael Bloomberg’s recommendation to limit the size of sugar-sweetened beverages sold at local food service establishments. The 11 member board reportedly voted unanimously at a June 12, 2012, meeting to publish the proposal, which would amend Article 81 of the Health Code to establish a maximum serving size of 16 ounces for sugary non-alcoholic drinks and all self-service cups. If adopted by DOHMH on September 13, the amendment would apply to restaurants, food carts, delis, movie theaters, stadiums, and arenas while also imposing a $200 fine for each violation of the code. According to the notice of public hearing, the proposal seeks to address rising obesity rates among city residents by “reacquainting New Yorkers with more appropriate portion sizes.” The plan has apparently drawn support from…
California Secretary of State Debra Bowen (D) has reportedly certified that enough valid signatures were gathered to allow a genetically modified organism (GMO) food-labeling initiative on the state ballot during the November 6, 2012, general election. In May, the Committee for the Right to Know obtained 971,126 signatures, of which 555,236 had to be proven valid. The ballot initiative, aka California Right to Know Genetically Modified Food Act, was covered in Issue 438 in this Update. “We’re thrilled that Californians will have the opportunity this November to vote for the right to know what’s in our food,” said Stacy Malkan, a committee spokesperson. “It’s about our fundamental right to make informed choices about the food we eat and feed our families.” See California Secretary of State Debra Bowen Press Release, June 11, 2012; Law360, June 12, 2012.
According to news sources, Philippine Department of Justice Secretary Leila de Lima issued an opinion in May 2012, upholding a Department of Health (DOH) memorandum that prohibited multinational companies that make infant milk and other nutritional products from using registered trademarks that contain health and nutrition claims which may undermine breastfeeding and breast milk. The companies were not prohibited from selling or advertising their products as long as their marketing materials, including product labels, comply with DOH rules. DOH apparently took the action on the basis of data showing that the country has a weak breastfeeding culture. In issuing her ruling, de Lima rejected the companies’ contention that preventing a trademark owner from the right to use its own registered mark on its products constituted a deprivation of property without due process of law. She reportedly said, “deceptive marks and misdescriptive marks are absolutely unregistrable.” See Business Mirror, June 13,…
