A Pennsylvania resident has filed a putative class action in a Florida federal court seeking to represent Florida and multistate classes of consumers allegedly misled by claims that Tropicana orange juice products are “pure” and “natural.” Pederson v. PepsiCo, No. 12-00104 (M.D. Fla., filed January 18, 2012). Similar to lawsuits already filed in New Jersey and California, this complaint alleges that Tropicana branded fruit juices are extensively processed and flavored for mass-marketing purposes. Additional information about the other lawsuits appears in Issue 422 of this Update. According to the complaint, “Defendants heavily process Tropicana Orange Juice by pasteurizing, de-aerating, and storing it for long periods of time at a ‘tank farm’ and under a nitrogen blanket, which strips the juice of its flavor and aroma. Defendants then re-flavor the product with chemical ‘flavor packets’ before it is packaged into a carton and sold to the consumer.” Alleging violations of the Florida…
A federal court in the District of Columbia has denied a motion to certify a class of Los Angeles County Whole Foods shoppers alleging that the company’s 2007 merger with Wild Oats “substantially lessened competition” in violation of the Clayton Act, “created an unlawful monopoly” under the Sherman Act, and “constituted an unlawful agreement in restraint of trade” in violation of both acts. Kottaras v. Whole Foods Mkt., Inc., No. 08-1832 (D.D.C., decided January 30, 2012). The plaintiff, a California resident and patron of both stores, claims that the merger unlawfully raised prices on certain products by foreclosing competition in the premium, natural and organic supermarket sector. According to the court, injury to individual class members “cannot be proven through classwide evidence” and thus the action fails to “satisfy Rule 23(b)(3)’s requirement that common questions predominate over individual ones.” The court also found that the methodology of the plaintiff’s expert…
Massachusetts Governor Deval Patrick (D) has proposed eliminating the state’s sales tax exemption on soft drinks and candy to combat obesity and control rising health care costs. Included in his fiscal year 2013 budget recommendation, Deval’s plan would reportedly raise $61.5 million targeted in large part to preserving public health programs and preventative care services. “In the past 10 years, the percentage of Massachusetts adults with diabetes has almost doubled, and obesity will soon pass smoking as the leading cause of preventable death,” according to a recent budget issue brief released by the governor. “Consumption of candy and soda is on the rise. Per capita candy consumption has increased steadily since the mid-1980s. Candy and soda add significant non-nutritional calories to the diets of Americans and are directly linked to obesity, especially among children.” See News Release of Governor Deval Patrick, January 25, 2012.
The European Commission recently released a new animal welfare strategy designed to close gaps in the current laws and remedy a lack of uniform enforcement. According to a January 20, 2012, press release, the strategy ultimately aims to (i) provide consumers with more information about “what animal-welfare claims made on product labels really mean,” (ii) ensure that existing rules “really do benefit animals,” and (iii) improve training for animal handlers. In addition, the Commission has pledged to address the transportation of animals to slaughter, as well as introduce a general animal welfare bill and bills pertaining specifically to pig welfare over the next four years. The announcement apparently followed a citizen petition covered in Issue 422 of this Update and initiated by World Horse Welfare (WHW), which called for an eight-hour limit on the transportation of livestock to slaughter. Nevertheless, the group has since criticized the new strategy’s failure to…
The European Parliament has reportedly vetoed a European Commission (EC) proposal that would have permitted reformulated food products to display “percent less” claims pertaining to their fat, salt and sugar contents. According to a February 2, 2012, press release, the rejected changes to Annex of EC Regulation 1924/2006 “would have allowed, for example, a ‘15% less sugar’ claim, which would be based on a previous formulation of the same product,” as well as a “No added salt/sodium” claim. The 393 members of Parliament (MEPs) who voted against the proposal apparently argued that products with such claims “could misleadingly appear healthier” than those with labels indicating a reduced level of sugar, salt or fat. Under current EU legislation, a reduced nutrient claim “may only be made where the reduction in content is at least 30% compared to a similar product, except . . . for sodium, or the equivalent value for salt,…
The Food and Drug Administration (FDA) has issued a report outlining eight proposals to make its “publicly available compliance and enforcement data more accessible and user-friendly.” Under the initiatives described in the report, FDA will explore different ways to (i) “improve data quality and facilitate more timely data disclosure”; (ii) expedite error reporting; (iii) “present its compliance and enforcement data graphically and better utilize mobile web applications”; (iv) “better integrate its compliance and enforcement data”; (v) improve the search capabilities of the inspections database; (vi) post additional data compilations or analysis; (vii) “better utilize social media”; and (viii) “provide appropriate context for the compliance and enforcement data that it discloses.” See Federal Register, February 1, 2012.
The Environmental Protection Agency (EPA) has announced that it will share with other federal agencies confidential business information relating to genetically engineered (GE) plants submitted under the Federal Insecticide, Fungicide, and Rodenticide Act. EPA has entered a memorandum of understanding (MOU) to this effect with the Department of Health and Human Services, U.S. Department of Agriculture (USDA), Centers for Disease Control and Prevention, and Food and Drug Administration (FDA). According to the notice, the MOU “will support and encourage cooperation and communication between USDA, FDA, and EPA in the regulatory oversight over genetically engineered plants and foods derived from such plants. Under the MOU, USDA’s Office of Animal and Plant Health Inspection Service/ Biotechnology Regulatory Services (APHIS/BRS) and EPA agree to share with each other information about genetically engineered plants and the foods derived from such plants, including non-public information exempt from public disclosure usually referred to as ‘confidential business…
The U.S. Department of Labor (DOL), which had sought in 2011 to increase protections for children working in agriculture, has agreed to ”re-propose the portion of its regulation on child labor in agriculture interpreting the ‘parental exemption.’” The original proposal sought to update a 40-year-old rule in light of data showing that “children are significantly more likely to be killed while performing agricultural work than while working in all other industries combined.” Agriculture Secretary Tom Vilsack applauded the action, saying, “The Labor Department listened to farmers and ranchers across the country. This announcement and the additional opportunity for comment represent a common-sense approach to strengthen our agricultural economy while keeping kids safe.” Critical responses from a number of lawmakers and the agricultural sector led DOL to reconsider its action. Under the revised rule, children of any age employed by their parent or a person standing in the place of the…
A recent study funded by the Robert Wood Johnson Foundation and American Heart Association claims that a penny-per-ounce tax on sugar-sweetened beverages would reduce consumption by 15 percent among adults ages 25 to 64 years. Y. Claire Wang, et al., “A Penny-Per Ounce Tax on Sugar-Sweetened Beverages Would Cut Health and Cost Burdens of Diabetes,” Health Affairs, January 2012. Researchers apparently used data from the National Health and Nutritional Examination Survey (2003-06) to estimate that, between 2010 and 2020, the tax would “prevent 2.4 million diabetes person-years, 95,000 coronary heart events, 8,000 strokes, and 26,000 premature deaths, while avoiding $17 billion in medical costs.” In addition, the scheme would purportedly raise $13 billion in annual tax revenue. In particular, the study notes that the “low price of these beverages, along with their mass marketing, has undoubtedly fueled their widespread overconsumption by both adults and children,” who allegedly drink as much…
The Association of National Advertisers’ 2012 Advertising Law & Public Policy Conference will reportedly target how best “to navigate today’s complex marketing landscape and remain on the cutting edge in an ever-challenging legal and regulatory environment.” Slated for March 28-29, 2012, in Washington, D.C., the conference will include sessions on (i) global views of online behavioral advertising and self regulation, (ii) coping with changes in class-action law, (iii) expectations from the U.S. Supreme Court, (iv) “how the long arm of criminal law is increasingly reaching into marketers’ boardrooms and impacting in-house counsel,” and (v) key issues facing federal agencies.
