A Cleveland judge has reportedly decided that an obese third grader who was removed from his mother’s custody after she was apparently unable to control his weight can now be removed from foster care. County child welfare officials had convinced the court in October 2011 that the 218-pound child was in imminent danger; they had been working with the family for more than a year after the boy was taken to a hospital with breathing problems. According to a news source, the court found that the boy had lost about 25 pounds during his two months in foster care. He ordered the honor student to live with his uncle following a hearing that took place on the child’s ninth birthday. See The Slatest, November 29, 2011; msnbc.com, December 14, 2011.
A recent report funded by the Pew Environment Group has suggested that many seafood products bearing eco-labels are “not much better than conventional farmed seafood options when it comes to protecting the ocean environment.” Titled “How Green is Your Eco-label? A Comparison of the Environmental Benefits of Marine Aquaculture Standards,” the study evidently relied on the 2010 Global Aquaculture Performance Index “to determine numerical scores of environmental performance for 20 different eco-labels for farmed marine finfish, such as salmon, cod, turbot and grouper.” Researchers then ranked voluntary organic, retailer and industry standards in terms of both absolute and value-added performance based on 10 environmental impact measures, including antibiotic and parasiticide use, the ecological impact of escaped pen fish, and the sustainability of feed fish. Intended as “a kind of Michelin guide for standards,” the report did not assess individual farms but instead asked “how poorly a farm could perform and…
George Washington University Law Professor John Banzhaf has issued a press release highlighting recent action the Food and Drug Administration took against a food company that purportedly misbrands one of its products by declaring it “All Natural” while making the product with a synthetic chemical preservative ingredient. According to Banzhaf, the agency’s warning letter is “likely to lend support to and encourage an ever-growing number of major class action law suits being filed on these grounds, says the public interest law professor whose earlier movement to use legal action as a weapon against obesity apparently inspired these new legal actions.” He claims that The American Lawyer recognized how he started this litigation movement, noting in an article that he used the courts to address obesity, “just as he had earlier done in leading the use of legal action as a weapon against smoking.” Banzhaf further states, “The movement which Banzhaf started…
A California resident who claims economic injury from purchasing Frito-Lay snack and chip products advertised as “All Natural” while allegedly containing genetically engineered (GE) corn and vegetable oil seeks to certify a nationwide class in a consumer fraud action filed in a California federal court. Gengo v. Frito-Lay N. Am., Inc., No. 11-10322 (C.D. Cal., filed December 14, 2011). According to the complaint, the company’s tortilla chips, sun chips and multigrain snacks are prominently labeled as “made with ALL NATURAL ingredients.” Because they are instead purportedly made with corn, soybean and canola oils “made from genetically modified plants and organisms,” the plaintiff contends that “she did not get the ‘all natural’ Tostito's and SunChip’s products that were advertised and she paid for.” Alleging violations of the California Business & Professions Code (misleading advertising and unfair competition) and Consumers Legal Remedies Act, breach of express warranty, and violation of the Magnuson-Moss…
A California resident is seeking to certify a nationwide class in a lawsuit alleging that Walgreens Co. 100% Grape Juice and 100% Apple Juice contain “dangerously high levels” of lead and arsenic. Boysen v. Walgreen Co., No. 11-6262 (N.D. Cal., filed December 13, 2011). According to the complaint, the levels of lead and arsenic in these beverages are higher than FDA limits on these chemicals in bottled water, and the company fails to disclose information about the contaminants on product labels or in advertising. The plaintiff alleges that California includes lead and arsenic on the list of those substances known to the state to cause cancer or reproductive harm, but does not otherwise include a Proposition 65 claim. Alleging unfair business acts or practices and false or misleading advertising under California law, breach of implied warranty, and unjust enrichment, the plaintiff seeks restitution; actual, statutory and punitive damages; injunctive relief; attorney’s…
A federal court in Alabama has granted in part a motion to stay discovery in litigation alleging that an orange juice maker misrepresented that its product is not made from juice concentrate, but is rather “100% pure Florida squeezed.” Leftwich v. TWS Mktg. Group, Inc., No. 11-1879 (N.D. Ala., order entered December 12, 2011). The court will allow discovery as to “general personal jurisdiction” over the non-resident beverage maker to proceed, while staying discovery as to all other matters. Residents of Indiana and Alabama brought the putative class action after the Food and Drug Administration warned the company in November 2010 that its labeling violated the Federal Food, Drug, and Cosmetic Act. According to the court, if jurisdiction over the defendant is lacking, it will dismiss the Indiana plaintiff, “leaving [the Alabama plaintiff] to proceed only on the count of unjust enrichment—which itself is still subject for consideration in [the…
A federal court in Georgia has determined that it has personal jurisdiction over a Michigan food-packaging company that was sued as a third party defendant in litigation over a recalled baby food product. IPN USA Corp. v. Nurture, Inc., No. 11-501 (N.D. Ga., decided December 12, 2011). A Food and Drug Administration investigation apparently concluded that the third-party defendant (Liquid) had violated agency regulations on the manufacture of acidified and acid food products. While the baby food manufacturer (Nurture) allegedly sustained millions in damages in the recall, it was the packaging supplier (IPN) that brought the lawsuit against Nurture for breach of contract. According to the court, Liquid had sufficient contacts with Georgia for the court to exercise jurisdiction over the company. For purposes of packaging Nurture’s baby food, Liquid had purchased a machine, packaging supplies and other equipment from IPN’s Georgia-based entity, which referred a “significant number” of prospective customers…
The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) has reopened the comment period until January 17, 2012, on a proposed rule that would amend and republish the Agricultural Bioterrorism Protection Act’s “list of selected agents and toxins that have the potential to pose a severe threat to animal or plant health, or to animal or plant products.” Details of the proposed rule were covered in Issue 412 of this Update. See Federal Register, December 15, 2011.
The Office of Inspector General (IG) of the U.S. Department of Health and Human Services has issued a report that “identified significant weaknesses in FDA’s [the Food and Drug Administration’s] oversight” of its contracts for state inspections of food facilities. In recent years, FDA has increasingly shifted to the states its responsibility for conducting inspections, and has apparently “failed to ensure [in eight states] that the required number of inspections was completed,” “did not ensure that all State inspections were properly classified and that all violations were remedied,” and “failed to complete the required number of audits for one-third of the States and did not always follow up on systemic problems identified.” Based on an analysis of FDA inspection data and interviews with agency officials, the report, titled “Vulnerabilities in FDA’s Oversight of State Food Facility Inspections,” opens by noting that annually “128,000 Americans are hospitalized and 3,000 die after…
Eight U.S. Senators have urged the Food and Drug Administration (FDA) to “publicly and vigorously” defend the safety of Gulf seafood in the wake of last year’s oil spill. Led by Senator David Vitter (R-La.), the lawmakers signed a December 1, 2011, letter to FDA Commissioner Margaret Hamburg asserting that although “rigorous testing” has revealed that Gulf seafood is safe for human consumption, many consumers believe otherwise because of “misinformation and unscientific claims.” Vitter wrote a similar letter to Hamburg in November. The effort was prompted by opposing claims made by the Natural Resources Defense Council (NRDC), whose scientists assert that FDA’s safety thresholds for Gulf seafood “significantly” underestimate cancer risks from seafood contaminants. NRDC published a study in Environmental Health Perspectives concluding that “FDA risk assessment methods should be updated to better reflect current risk assessment practices and to protect vulnerable populations such as pregnant women and children.”
