The House Committee on Energy and Commerce has requested that the owners of Jensen Farms, identified as the source of the cantaloupe contaminated with Listeria monocytogenes responsible for a nationwide foodborne illness outbreak, schedule a briefing with committee staff. The October 21, 2011, letter also asks that Ryan and Eric Jensen “preserve all documents and communications that may be relevant to understanding the reasons for the contamination and distribution of contaminated products from Jensen Farms.” The committee requests that the staff briefing “occur in person no later than November 3, 2011.
An October 15, 2011, New York Times article has covered the impending ban on foie gras sales in California, where several chefs are apparently staging swan-song dinners in honor of the fatty fare. According to the Times, a law signed eight years ago will in eight months make California the first state to criminalize foie gras, fining violators up to $1,000 per day for serving the delicacy to patrons. As a result, chefs like Ludo Lefebvre recently announced “You Gotta Fight for Your Right to Foie!” events for fans to overindulge on duck and goose livers one last time. “I want people to have the freedom to eat what they want. Animal rights people would turn everyone into a vegan if they could,” Lefebvre told the paper. “Foie gras is one of the greatest ingredients, a French delicacy. I was born and raised with foie gras. It’s like if you…
A natural foods co-op in Durango, Colorado, has reportedly rolled out a new labeling initiative for products free of genetically modified organisms (GMO) to recognize “October’s designation as national non-GMO month.” According to an October 19, 2011, article in The Durango Herald, the local co-op displays two labels on shelves to indicate products certified by the Non-GMO Project and those verified by manufacturers as containing no GMOs. “Normally, consumers would have to do the research or call manufacturers themselves if they wanted that information,” the store’s marketing manager told the Herald while noting that the co-op itself is also a member the National Cooperative Growers Association, Just Label It Campaign and Non-GMO Project. As another natural grocer apparently elaborated, “Without GMO labeling, the only way to know if products contain genetically engineered foods is if they are made with 100 percent USDA-certified organic ingredients.” The manager of a third area…
According to legal commentators, including Shook, Hardy & Bacon Agribusiness & Food Safety Practice Co-Chair Madeleine McDonough, while the floodgates have opened on litigation against food and beverage makers accusing them of misleading consumers with “All Natural” labels, proving that each plaintiff relied on the representation to purchase a given product may ultimately doom this recent class action trend. In a Law360 article titled “‘All Natural’ Class Action Wave May Be Short-Lived,” even plaintiffs’ lawyers concede that consumers expecting “all natural” products to provide some undefined quality will have difficulty proving that everyone relied on the representation when purchasing the product. Noting that the Food and Drug Administration has not placed a priority on defining the term in conjunction with foods and beverages, which makes it a fertile ground for litigation, McDonough also said that plaintiffs face the hurdle of proving a concerted effort to defraud them. In her experience,…
General Nutrition Centers Inc. and the company that makes 2:1 Protein Bars® have settled class claims filed in California alleging that the companies misbranded four flavors in the product line by “allegedly overstat[ing] their protein content and understat[ing] their sugar and carbohydrate content.” Cagle v. Anti-Aging Essentials, Inc., No. 11-02940 (C.D. Cal., motion for preliminary approval of proposed settlement filed October 17, 2011). While the companies apparently reformulated the bars and labels before the lawsuit was filed, they have agreed to comply with federal labeling laws in the future and to provide three free protein bars to class members who have been identified through online purchase records or their use of customer loyalty cards. Consumers who can prove their purchases with receipts will receive free replacement bars under the proposed settlement, if the court approves it. Consumers without proof of purchase would be able to receive buy-one-get-one free coupons for…
The Center for Science in the Public Interest (CSPI) is representing a California woman who has sued General Mills, Inc. on behalf of a putative nationwide class of consumers who purchased the company’s Fruit Roll-Ups®, Fruit by the Foot® and Fruit Gushers® products, claiming that the company deceptively markets them as healthy and wholesome. Lam v. General Mills, Inc. No. 11-5056 (N.D. Cal., filed October 14, 2011). According to CSPI, “General Mills is basically dressing up a very cheap candy as if it were fruit and charging a premium for it.” Product labeling purportedly refers to the snacks as “fruit flavored,” “naturally flavored,” “good source of Vitamin C,” “low fat,” and “gluten free.” The complaint alleges that these claims are misleading because the snacks actually contain trans fat, added sugars, and artificial food dyes. The plaintiff also alleges that the products lack “significant amounts of real, natural fruit” and have no…
The Seventh Circuit Court of Appeals has dismissed with prejudice consumer protection claims filed against two companies that make snack bars with extra fiber, finding the claims preempted under federal law. Turek v. General Mills, Inc., No. 10-3267 (7th Cir., decided October 17, 2011). According to the court, “The disclaimers that the plaintiff wants added to the labeling of the defendants’ inulin-containing chewy bars are not identical to the labeling requirements imposed on such products by federal law, and so they are barred.” The plaintiff had sought the inclusion of information on chewy bar product labels indicating that inulin derived from chicory root “produces fewer health benefits than a product that contains only ‘natural’ fiber,” and that “inulin from chicory root should not be consumed by pregnant or lactating women.” Additional details about the complaint and the district court’s ruling dismissing the claims appear in Issues 327 and 364 of…
The Food and Drug Administration (FDA) recently opened a docket pertaining to a petition filed by Philadelphia seeking to exempt from preemption a menu labeling ordinance that requires chain restaurants and retail food facilities in the city to provide calorie, fat and sodium information for the food and beverage products they sell. According to the petition, the ordinance meets three requirements under the Federal Food, Drug, and Cosmetic Act allowing FDA to grant an exemption from preemption: the ordinance “was designed to address a particular local need for information which need is not met by the requirements” of federal labeling law, the exemption from preemption “would not unduly burden interstate commerce,” and the exemption “would not cause any food to be in violation of any applicable requirement under federal law.” Philadelphia contends that while Congress required uniformity in chain restaurant menu labeling as part of the Patient Protection and Affordable…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the deadline for public comment on a proposal to increase the no significant risk level (NSRL) for 4-methylimidazole (4-MEI) to November 7, 2011. The action was taken in response to a request from the American Beverage Association and International Technical Caramel Association. The chemical has been identified as a by-product of fermentation, heating or roasting in certain foods and beverages, such as coffee, some carbonated beverages, beer and wine, soy sauce, molasses, and crackers. The new proposed NSRL is 29 micrograms per day, an increase from the 16 micrograms per day level that OEHHA proposed in January.
The European Commission (EC) has adopted a recommendation defining “nanomaterials” as materials “whose main constituents have a dimension of between 1 and 100 billionth of a meter.” According to an October 18, 2011, press release, this definition considers only “the size of the constituent particles of a material, rather than hazard or risk.” As such, it describes nanomaterials as “a natural, incidental or manufactured material containing particles, in an unbound state or as an aggregate or as an agglomerate and where, for 50% or more of the particles in the number size distribution, one or more external dimensions is in the size range 1 nm – 100 nm.” The definition apparently relies on input from the Scientific Committee on Emerging and Newly Identified Health Risks (SCENIHR) and the Joint Research Centre (JRC), whose draft recommendations were covered in Issue 355 of this Update. The EC hopes that the adopted version…
