The Center for Environmental Health has filed a notice of violation under California’s Safe Drinking Water and Toxic Enforcement Act (Prop. 65) to inform the manufacturer and retailers of several carbonated soft drinks containing caramel coloring that it will file a citizen enforcement lawsuit against them for violating Prop. 65’s warning provision since January 7, 2012, with respect to 4-methylimidazole (4 MEI). According to the notice, “No clear and reasonable warning is provided with these products regarding the carcinogenic hazards associated with 4-MEI exposure.” The notice also states that the lawsuit will be filed unless each “alleged violator enters into a binding written agreement to remedy the violations alleged herein by: (1) recalling products already sold; (2) reformulating such products to eliminate the 4-MEI exposure or taking appropriate measures to otherwise comply with Proposition 65; and (3) paying an appropriate civil penalty based on the factors enumerated” in California’s Health…
A Georgia resident has filed a complaint in federal court on behalf of a statewide class of consumers allegedly misled about the purported health benefits of POM Wonderful’s pomegranate products. Templeton v. POM Wonderful, LLC, No. 12-53 (S.D. Ga., filed February 16, 2012). According to the complaint, the company promotes its products “as having special health benefits, including but not limited to, the prevention[,] mitigation, and/or treatment of the following: (a) Atherosclerosis; (b) Blood Flow/Pressure; (c) Prostate Cancer, (d) Erectile Function; (e) Cardiovascular Disease; (f) Reduce LDL Cholesterol; (g) and other age-related medical conditions.” Citing investigations by the National Advertising Division of the Council of Better Business Bureaus, the U.K.’s Advertising Standards Authority, U.S. Food and Drug Administration, and U.S. Federal Trade Commission, the plaintiff claims that these promotions are not substantiated by medical evidence. Alleging violations of the Georgia Uniform Deceptive Trade Practices Act and unjust enrichment, the plaintiff…
Frito-Lay North America, Inc. has filed a trademark and patent infringement lawsuit in a Texas federal court against a company that purportedly makes a similar tortilla chip product and sells it in similar packaging. Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., No. 12 00074 (E.D. Tex., filed February 10, 2012). At issue are Frito-Lay’s TOSTITOS SCOOPS! ® tortilla corn chips, which have a distinctive shape for use with salsa, guacamole and other dips. According to the complaint, Frito-Lay has registered the shape, brand design, and product and brand names as marks with the U.S. Patent and Trademark Office and holds several patents for the processes and systems used to manufacture the chips. The defendant makes and sells a product called BOWLZ, which Frito-Lay alleges infringes its marks, trade dress and patents. With counts for federal trademark infringement, trade dress infringement and unfair competition, federal trademark dilution, patent infringement, common law…
A federal court in Pennsylvania has granted the U.S. government’s motion for summary judgment and permanently enjoined a Pennsylvania dairy farmer from selling raw milk and milk products in interstate commerce. United States v. Allgyer, No. 11-02651 (E.D. Pa., decided February 2, 2012). According to the court, Daniel Allgyer’s interstate sales of raw milk were discovered through an undercover investigation that involved placing online orders for the product through a membership-only group. Members were cautioned by the website to “not share information” about the group with government agencies or doctors. The Food and Drug Administration (FDA) apparently purchased some of the milk for delivery out of state, and independent testing confirmed that it was unpasteurized. FDA warned the farmer to stop violating federal law, but he continued to make deliveries to out-of-state consumers through a different membership organization. The court rejected the defendant’s arguments that summary judgment should not be…
According to a news source, the United States and Canada have begun to develop a coordinated model framework to regulate nanomaterials. A draft plan, unveiled during a January 2012 meeting of the U.S.-Canada Regulatory Cooperation Council involving officials with the U.S. Office of Management and Budget (OMB) and Environment Canada, identifies the following as the “deliverable outcome”: “Share information and develop common approaches, to the extent possible, on foundational regulatory elements, including criteria for determining characteristics of concern/no concern, information gathering, approaches to risk assessment and management, etc. Develop joint initiatives to align regulatory approaches in specific areas such that consistency exists for consumers and industry in Canada and the US.” Industry officials attending the meeting were reportedly cautiously optimistic about the initiative. They urged government representatives to build on the work already done by European regulators to maintain some consistency, but also suggested that American officials move away from…
The Office of the U.S. Trade Representative (USTR) has announced a “historic new partnership” with the European Union that recognizes its organic standards as essentially equivalent to those administered by the U.S. Department of Agriculture (USDA). Effective June 1, 2012, the trade agreement will allow organic products certified by EU or USDA officials to be sold “as organic in either region.” “Previously, growers and companies wanting to trade products on both sides of the Atlantic had to obtain separate certifications to two standards, which meant a double set of fees, inspections and paperwork,” explains a February 15, 2012, USTR press release. “This partnership eliminates significant barriers, especially for small and medium-sized organic producers. All products meeting the terms of the partnership can be labeled as certified organic produce, meat, cereal, or wine.” According to USTR, the two parties conducted “thorough on-site audits” to ensure that their organic programs were compatible.…
The Center for Science in the Public Interest (CSPI) has petitioned the Food and Drug Administration (FDA) to establish performance standards for the shellfish industry to reduce the threat of a “naturally occurring but deadly contaminant” found primarily in raw or undercooked oysters. According to a CSPI letter to FDA Commissioner Margaret Hamburg, Vibrio vulnificus (V-vulnificus) bacteria in contaminated shellfish is responsible for sickening approximately 30 people and killing 15 annually. Claiming that an annual “outbreak” occurs between April and November when Gulf Coast water temperatures create an ideal environment for the contaminant to grow, CSPI has urged FDA to “act now” to enforce regulations in 2011’s Food Safety Modernization Act requiring performance standards for significant contaminants such as V-vulnificus. “If we knew a serial killer were going to kill a dozen people like clockwork each year, the police would spring into action to stop it,” said David Plunkett ,…
The U.S. Department of Agriculture’s (USDA’s) Foreign Agriculture Service recently issued a Global Agricultural Information Network (GAIN) report concluding that a French proposal to prohibit all food packaging and materials containing bisphenol A (BPA) would “very likely… impact and jeopardize U.S. processed and other food exports to France.” Introduced after a French National Agency for Food Safety and Occupational and Environmental Health report questioned BPA’s safety, the legislation apparently reflects “strong political pressure from environmental and consumers’ groups,” as well as public distrust of the regulatory system following “the mad cow scandal, the Mediator diabetes drug scandal and even the PIP breast implant scandal.” As a result, the French food industry has evidently expressed concern that a BPA ban is unavoidable “in a short to medium term” even if the current bill is challenged at the EU level. The GAIN report warns U.S. companies that the proposed measure would require…
The U.S. Department of Agriculture (USDA) has published its semiannual regulatory agenda outlining measures currently under development for 2012. Among the agenda items are proposed revisions to the rules that govern “certain genetically engineered organisms [GMOs] in order to bring the regulations into alignment with provisions of the Plant Protection Act.” Billed as the first comprehensive review of these regulations since 1987, the undertaking would apparently take into account the agency’s accumulated rulemaking experience as well as “advances in genetic science and technology.” USDA thus anticipates that any rule changes will affect “persons involved with the importation, interstate movement, or release into the environment of genetically engineered plants and certain other [GMOs].” In addition, the agenda includes modifications to the rules governing the importation of livestock and poultry at risk of transmitting bovine spongiform encephalopathy (BSE) or highly pathogenic avian influenza. In particular, USDA has suggested (i) amending BSE regulations…
U.S., Swiss and Norwegian researchers have analyzed an array of consumer products sold in the United States to determine how much titanium dioxide they contained by weight in a first-ever human exposure analysis and concluded that food sources likely account for most of the titanium nanoparticles released into the environment. Alex Weir, et al., “Titanium Dioxide Nanoparticles in Food and Personal Care Products,” Environmental Science & Technology, February 8, 2012. Noting that the substance is a common additive, the study showed that foods with the highest content of titanium dioxide (up to 360 mg per serving) are candies, sweets and chewing gum, and that personal care products, such as toothpaste and select sunscreens, can contain up to 10 percent titanium by weight. The research also showed that approximately 36 percent of the particles are nano-sized. The researchers conclude that children have the highest exposures due to their consumption of sweets and…
