The National Consumers League (NCL) has filed a formal complaint with the Food and Drug Administration (FDA), alleging that NuVal LLC’s point of purchase nutrition rating system is “inconsistent with FDA guidance statements and enforcement correspondence, federal nutrition programs, and recommendations from the Institute of Medicine (IOM).” Used by more than 1,600 grocery stores in 31 states, the NuVal system apparently scores products out of 100 total points, with more nutritious options garnering a higher rating. NCL has argued, however, that NuVal relies on “a proprietary, non-public algorithm that can lead to inconsistent scores that may confuse and mislead consumers,” and has asked FDA to issue a warning letter to the retail industry about its continued use. Citing an IOM report on nutrition rating systems that criticized NuVal’s formula, the NCL complaint contends that NuVal “runs afoul” of FDA Guidance on Point of Purchase Labeling, which stipulates that all such…
The Public Health Advocacy Institute (PHAI) and several other organizations have asked the Federal Trade Commission (FTC) to “investigate PepsiCo’s current ‘Win from Within’ commercial television advertisement and commercial website for its Gatorade sports drink product featuring Michael Jordan’s performance during game 5 of the 1997 NBA Finals.” According to the letter, joined by groups such as the California Center for Public Health Advocacy, Center for Science in the Public Interest and Yale Rudd Center for Food Policy & Obesity, the ad “encourages teens to engage in dangerous behavior; sequences historical events to falsely enhance the role of Gatorade in Mr. Jordan’s game-winning athletic performance; and contains deceptive product imagery.” The letter claims that the ad targets teens by airing on cable networks appealing to teens, such as “Adult Swim, Teen Nick, ABC Family, and MTV.” The organizations claim that the ad promotes vigorous physical activity during illness, including a…
“The new wave of American cuisine has a regressive side, wrapped up in nostalgia for an imagined past… To chefs like [Daniel Patterson], unprocessed milk does not just taste better; it is sentimental and, more important, it is pure,” claims New Yorker staff writer Dana Goodyear in this article chronicling the raw milk movement and its ongoing confrontation with government regulators. Focusing on a California-based group known as “the Rawesome Three” who in 2011 were arrested for—among other charges—running an unlicensed milk plant and processing milk without pasteurization, Goodyear likens the covert world of raw milk to that of marijuana and other illicit substances. Despite the insistence of food safety officials that unpasteurized milk “can carry salmonella, campylobacter, and E. coli O157:H7,” the raw milk acolytes quoted in Goodyear’s report apparently believe in the product’s natural healing properties and will go to great lengths to obtain it, frequenting undercover specialty stores…
Reuters has issued a “special report” titled “How Washington went soft on childhood obesity” that details how food and beverage industry interests have allegedly turned aside national and statewide initiatives aimed at addressing childhood obesity. According to the article, “[a]t every level of government, the food and beverage industries won fight after fight during the last decade. They have never lost a significant political battle in the United States despite mounting scientific evidence of the role of unhealthy food and children’s marketing in obesity.” A number of industry critics, including Senator Tom Harkin (D-Iowa), Rudd Center for Food Policy and Obesity Director Kelly Brownell, and Center for Science in the Public Interest (CSPI) Executive Director Michael Jacobson, are quoted making comparisons between the tactics used by the food and beverage industries and those used by tobacco companies. The report focuses on first lady Michelle Obama’s “Let’s Move” campaign, which has…
The Johns Hopkins Bloomberg School of Public Health’s Center on Alcohol Marketing and Youth (CAMY) has issued a May 1, 2012, report claiming that the majority of states have failed to adequately address youth exposure to alcohol advertising. According to a concurrent press release, CAMY researchers apparently reviewed state advertising laws to determine whether each law incorporated all, some or none of eight “best practices” designed to limit alcohol advertising that is likely to be viewed by children and underage youth. Their results purportedly revealed that no state successfully applied more than five of the eight recommended policies and only 11 states used more than one. In particular, CAMY has urged states looking to reduce youth exposure to alcohol marketing to (i) “prohibit false or misleading advertising;” (ii) “prohibit alcohol advertising that targets minors”; (iii) “establish jurisdiction over in-state electronic media (TV and radio)”; (iv) “restrict outdoor alcohol advertising in…
An Australian court has reportedly awarded $8 million to the family of a girl who allegedly ate a Salmonella-contaminated chicken product from a KFC restaurant and became critically ill with organ system failures, septic shock, severe brain injury, and spastic quadriplegia. Samaan v. Kentucky Fried Chicken Pty Ltd., No. 2006/20457 (NSW Sup. Ct., decided April 4, 2012). The court exhaustively explores inconsistencies in the testimony and evidence concerning the source of the chicken that allegedly caused the injury, but concludes that the KFC “Twister” product “was the only common meal to the affected family members (and no others) and it was consumed within the incubation period for Salmonella poisoning.” According to the court, many of the inconsistencies could be attributed to language and translation issues given that the parents and one child were born in Sudan and were native Arabic speakers. Other inconsistencies could be attributed to concerns over the…
Seeking to certify a class of all consumers who purchased Lucerne® brand Greek yogurt from any of its parent Safeway grocery stores, a California resident has filed a complaint in state court alleging that the product is mislabeled because it is not thickened through straining but rather by the addition of milk protein concentrate (MPC). Tamas v. Safeway, Inc., No. RIC 1206341 (Cal. Super. Ct., Riverside Cty., filed April 27, 2012). According to the complaint, MPC “is essentially a blend of dry dairy ingredients,” often imported and used to increase protein ratios in dairy products; it is allegedly not among “generally recognized as safe” food additives listed by the Food and Drug Administration (FDA). “Thus,” the plaintiff claims, “using MPC in any human food constitutes adulteration.” The plaintiff also alleges that the product does not meet FDA’s standard of identity for yogurt products. The plaintiff contends that she would not…
A New Jersey resident from Scotland, who began working in 2000 for seafood company North Landing Ltd. at the invitation of its former owner, has filed a wrongful discharge suit against the company, its new owners and a supervisor claiming that her concerns over the company’s purportedly illegal practices, when brought to the attention of her supervisor, resulted in him verbally berating and slapping her, thus creating a hostile work environment that she could no longer tolerate. Chadwick v. North Landing Ltd., No. L1776-12 (N.J. Super. Ct., Passaic Cty., filed April 26, 2012). Among other matters, the plaintiff alleges that the company processed and sold farm-raised salmon treated for sea lice with Salmosan, a chemical that she claims the Food and Drug Administration (FDA) has not approved. She contends that when she brought this to her supervisor’s attention, he told her to “delete computer records showing the fish having been…
According to a news source, the Judicial Panel on Multidistrict Litigation (JPML) will conduct a hearing May 31, 2012, to consider the petitions filed by two consumer groups seeking to consolidate, for pretrial proceedings, putative class actions filed in various federal district courts alleging that companies selling orange juice as “All Natural” mislead consumers because the products undergo processing to increase shelf-life. In re: Orange Juice Mktg., MDL No. 2353 (J.P.M.L., May 31, 2012, hearing); In re: Simply Orange Juice Mktg. & Sales Practices Litig., MDL No. 2361 (J.P.M.L., May 31, 2012, hearing). Additional details about the litigation appear in issues 425 and 431 of this Update. See Bloomberg BNA Product Safety & Liability Reporter, April 30, 2012.
Determining that it lacks jurisdiction under the Class Action Fairness Act (CAFA) to hear state-law claims alleging consumer fraud in the sale of honey, a federal court in California has remanded to state court a putative class action filed against CVS Caremark Corp. Overton v. CVS Caremark Corp., No. 12-0121 (C.D. Cal., decided April 24, 2012). While the case is one of several that may be transferred to a multidistrict litigation panel (MDL No. 2374) under a motion pending before the Judicial Panel on Multidistrict Litigation, the court retained the authority to decide the jurisdiction issue. To meet its burden of showing that the lawsuit satisfied CAFA’s amount-in-controversy requirement, that is, “the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs,” the defendant apparently relied on the declaration of a vice president who calculated that the company sold $508,995 worth of the product every…
