Under a court order preliminarily approving a settlement of consumer fraud claims involving purported health benefit labeling used to sell Diamond Foods walnuts, the class notification program has apparently begun. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., preliminary approval order entered January 30, 2012). The court previously certified a nationwide class of consumers who have until July 30, 2012, to opt out of or object to the settlement. Additional details about the certification ruling appear in Issue 397 of this Update. The deadline for filing a claim is September 7. While the company admits no wrongdoing, it has ceased using the disputed product labels and has removed a “Live Well” section from its website. It also agreed to cease using unqualified health claims, but reserves “the right to use the FDA-approved qualified health claim for walnuts, any language or symbols developed by or in conjunction with the American…
The insurance carriers for Rubio’s Restaurant have filed a motion for summary judgment in a dispute with the company that insured the restaurant’s fish supplier, following the settlement of claims pursued by a restaurant patron who alleged that he has permanent and severe neurological injuries from exposure to a toxin from the mahi mahi in a Rubio’s fish burrito. Fireman’s Fund Ins. Co. v. Nationwide Mut. Fire Ins. Co., No. 11-0114 (S.D. Cal., motion filed April 9, 2012). While the patron and his wife reportedly sought $7 million in damages, the settlement amount remains undisclosed. According to the plaintiffs, the defendant must reimburse them for the costs of defending the restaurant and the amounts they contributed to the settlement on the restaurant’s behalf. The restaurant was evidently an additional insured under the defendant’s policy with the fish supplier, and the plaintiffs argue that a duty to defend exists when there…
The Judicial Panel on Multidistrict Litigation (JPML) has denied a motion seeking to consolidate and transfer to a multidistrict litigation court three cases filed in federal courts against companies allegedly responsible for a 2009 E. coli outbreak involving contaminated ground beef. In re: Ne. Contaminated Beef Prods. Liab. Litig., MDL No. 2346 (J.P.M.L., D. Conn., decided April 17, 2012). According to the court, the cases do not “contain significant overlapping questions of fact sufficient to warrant centralization of the few involved actions,” and “the likelihood that additional actions will be filed concerning this E. coli outbreak—which occurred nearly two and a half years ago and affected under 30 individuals—seems low. With only three actions pending in two adjacent districts involved in this litigation, movant has failed to convince us that centralization is needed.” The court indicated that it would be “practicable and preferable” for the parties, courts and counsel to informally…
Sweden has banned the use of bisphenol A (BPA) in food packaging intended for children younger than age 3. Mainly affecting the lids of baby food jars, the April 13, 2012, edict also gave the Swedish Chemicals Agency three months to investigate whether the chemical should be prohibited in certain types of thermal paper, such as tickets and receipts, and other relevant agencies the opportunity to determine the extent of its use in drinking-water pipes, toys and other children’s goods. Minister for the Environment Lena Ek, who said she plans to raise the BPA issue soon with the European Commission and European Union (EU) member states, noted that the ban ensures that the country’s current voluntary phaseout of BPA-free packaging becomes permanent. “As a matter of caution, we are now acting in all areas that the agencies believe play a significant role in the exposure of young children,” she said.…
The U.K. Food Standards Agency (FSA) has released its fourth Food Surveillance Information Sheet analyzing acrylamide and furan levels in 248 retail products from 10 food groups. Conducted from 2007 to 2011, the survey apparently revealed “an upward trend in acrylamide levels in processed cereal-based baby foods (excluding rusks), and a reduction in other products, such as pre-cooked French fries, potato products for home cooking and bread.” Although FSA did not note any concern for human health risks, it reported that, of the 248 products surveyed, 13 samples contained acrylamide levels “that exceeded the ‘indicative value’ (IV) for their food group” and therefore warrant investigation by “the relevant local authority.” “The Agency advises that chips should be cooked to a light golden color. Bread and bread products should also be toasted to the lightest color possible,” stated FSA, which will send its findings to the European Food Safety Authority for…
The Humane Society of the United States (HSUS) has reportedly filed a legal complaint with the Federal Trade Commission (FTC) alleging that the National Pork Producers Council (NPPC) “is engaging in deceptive advertising related to animal well-being in violation of the Federal Trade Commission Act,” according to an April 18, 2012, press release. In particular, the complaint apparently maintains that NPPC’s “We Care Initiative” and “Pork Quality Assurance [PQA] Plus” program “are riddled with numerous false claims regarding the welfare of pigs, including the trade group’s patently false claim that its PQA Plus program helps to ‘ensure that all animals in the pork industry continue to receive humane care and handling.’” In support of these assertions, HSUS claims to have documented pork industry practices “that most consumers do not consider humane such as the extreme confinement of breeding sows in two-foot-wide metal cages, and painful procedures such as tail ‘docking,’…
The U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB) has issued a final rule ordering “the disclosure of the presence of cochineal extract and carmine on the labels of any alcohol beverage containing one or both of these color additives.” According to TTB, the rule responds to a Food and Drug Administration (FDA) regulation that took effect on January 5, 2011, and requires manufacturers to label these two additives on all food and cosmetic products due to the potential for severe allergic reactions. Effective March 16, 2012, with a final compliance date of April 16, 2013, the TTB rule notes that FDA does not compel labels to disclose that cochineal extract and carmine are derived from insects native to subtropical South America and Mexico. In issuing its final decision, TTB rejected one comment that called for listing the additives’ source despite industry concerns that some consumers “would find the thought…
The Food and Drug Administration (FDA) has issued draft guidance that, in part, addresses the use of nanotechnology in food processing. Among other matters, “FDA considers food manufacturing processes that involve nanotechnology in the same manner as any other food manufacturing technology,” although the agency also apparently recognizes that “nanotechnology and other emerging technologies may introduce issues that warrant additional or different evaluation during a safety assessment of a food substance. For example, so-called nano engineered food substances can have significantly altered bioavailability and may, therefore, raise new safety issues that have not been seen in their traditionally manufactured counterparts.” Accordingly, FDA states, “When a food substance is manufactured to include a particle size distribution shifted more fully into the nanometer range, safety assessments should be based on data relevant to the nanometer version of the food substance. Where nano engineered food substances have new properties, additional or different testing…
A recent study has purportedly found that “neither caffeinated nor decaffeinated coffee was associated with an increased risk of total chronic disease, CVD [cardiovascular disease], or cancer,” according to a concurrent editorial published in the American Journal of Clinical Nutrition. Anna Floegel, “Coffee Consumption and Risk of Chronic Disease in the European Prospective Investigation into Cancer and Nutrition (EPIC)-Germany Study,” American Journal of Clinical Nutrition, April 2012. Researchers analyzed data from medical followups and food frequency questionnaires gathered from 42,659 participants in the European Prospective Investigation into Cancer and Nutrition (EPIC)- Germany, reporting the effects of coffee on overall health. The results not only failed to reveal a link between coffee and chronic disease, but suggested that the beverage may be associated with a lower risk of type 2 diabetes. “The association between coffee consumption and risk of chronic disease is of considerable relevance because coffee is consumed worldwide and any…
A recent study has allegedly linked sugary drink consumption to narrowed retinal blood vessels in children as young as age 12, raising concerns about the youths’ long-term cardiovascular health. Bamini Gopinath, et al., “Carbohydrate nutrition is associated with changes in the retinal vascular structure and branching pattern in children,” American Journal of Clinical Nutrition, May 2012. Designed to determine whether high-glycemic index (high-GI), high-glycemic load (high-GL) or carbohydrate-laden diets could lead to small vessel dysfunction, the study selected 12-year-old students from 21 schools to undergo “detailed eye examinations” measuring retinal vessel caliber and fractal dimension, that is, “the single ‘global’ measure of the branching pattern of retinal blood vessels as a whole.” In particular, the study noted that narrower arteriolar caliber and wider venular caliber have been associated with incident hypertension and CVD [cardiovascular disease], whereas fractal dimension has been associated with higher blood pressure, acute lacunar stroke and coronary…
