A California woman who alleges that certain J.M. Smucker’s products contain partially hydrogenated vegetable oil (PHVO), or trans fat, while the company falsely promotes them as healthy for consumers, has requested an October 10, 2011, hearing on her motion to certify a nationwide class. Henderson v. The J.M. Smucker Co., No. 10-04525 (C.D. Cal., first amended complaint filed August 12, 2010). According to the complaint, the plaintiff purchased the company’s Crisco Original Shortening®, Crisco Butter Flavor Shortening® and Smucker’s Uncrustables Sandwiches® relying on representations that the shortening had “50% Less Saturated Fat Than Butter” and was “All Vegetable,” and that the Uncrustables were “Wholesome,” made from “whole wheat” and “homemade goodness.” Characterizing PHVO as an “unwholesome manufactured additive,” most of the complaint focuses on the purported health effects of consuming trans fat. The plaintiff alleges violations of various consumer fraud laws and seeks injunctive relief, corrective advertising, disgorgement, the destruction of “all misleading…
A federal court in Florida has dismissed with prejudice most of the claims asserted in a putative class action alleging that “percent fat free” labels on the packages of deli meats are misleading and deceptive. Kuenzig v. Kraft Foods, Inc., No. 11-838 (Tampa Div., decided September 12, 2011). Additional information about the case appears in Issue 391 of this Update. The court found all but one of the plaintiff’s claims preempted by federal food-labeling law and also found that all but one of his claims failed to state a claim because they were frivolous or disingenuous. As to defendant Hormel Foods Corp., the plaintiff had alleged that while the company’s labels do not indicate the number of calories per serving next to the “percent fat free” claim on the front of its product packaging, the labels are “somehow misleading by association, since Hormel’s products are on grocery shelves next to Kraft’s products.”…
Two putative class actions alleging that companies making and selling extra virgin olive oil (EVOO) sell their products at a premium despite their failure to meet certain EVOO standards have been dismissed by a federal court in Florida because the plaintiffs did not adequately plead their claims under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Meyer v. Colavita USA, Inc., No. 10-61781, Nachio v. Am. Rice Inc., No. 10-61793 (S.D. Fla., decided September 13, 2011). The defendants claimed in their motions to dismiss that the complaints were based on a flawed UC Davis study that analyzed a small sample of olive oil purchased in California and that the plaintiffs failed to either allege that the products they purchased were not EVOO as the companies claimed or that they had been harmed. The court agreed that the UC Davis results were…
Concluding that “dolphin-safe” tuna product labels authorized by the U.S. Commerce Department “are more trade-restrictive than necessary to achieve a legitimate objective,” a World Trade Organization (WTO) panel has given a partial victory to Mexico, which filed a complaint in 2009 claiming that the labels were illegal because they excluded Mexican yellowfin tuna from the U.S. market and shut down one-third of its tuna fleet. The WTO panel rejected Mexico’s claim that the U.S. labeling provisions discriminate against its tuna products, finding “that Mexican tuna products are not afforded less favourable treatment than tuna products of the US and other origins in respect of the US dolphin safe labeling provisions on the basis of their origin.” Still, the panel recommended that the United States be asked “to bring its measures into conformity with its obligations” under the Technical Barriers to Trade agreement. Mexican Economy Secretary Bruno Ferrari reportedly responded to news…
The Food and Drug Administration (FDA) and the U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) have established new dockets “to obtain comments, data and evidence relevant to the dietary intake of sodium as well as current and emerging approaches designed to promote sodium reduction.” FDA and FSIS have warned that current sodium consumption “is substantially higher than what has been recommended by scientific and public health agencies and organizations,” including the Institute of Medicine and the USDA in its 2010 Dietary Guidelines for Americans. According to the September 15, 2011, Federal Register notice, “The Centers for Disease Control and Prevention (CDC) reported in 2010 that over 80 percent of adults (>=20 years) recommended to consume less than 2,300 mg/d [milligrams per diem] of sodium in fact consumed more than 2,300 mg/d.” The new dockets invite stakeholders and other interested persons to provide information about (i) “current and…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) recently announced its intention to prohibit six serogroups of Shiga toxin-producing E. coli (STEC) in addition to E. coli O157:H7. According to FSIS, the agency plans to begin testing for the additional STEC on March 5, 2012, at which time those six strains will be deemed adulterants and barred from commerce under the Federal Meat Inspection Act if detected in raw ground beef, its components or tenderized steak. “As a result of today’s action, if the E. coli serogroups O26, O103, O45, O111, O121 and O145 are found in raw ground beef or its precursors, those products will be prohibited from entering commerce,” stated a September 13, 2011, USDA press release, which also solicits comments on the policy change for 60 days after publication in the Federal Register.
The U.S. Government Accountability Office (GAO) has issued a September 2011 report claiming that the Department of Health and Human Services (HHS) and U.S. Department of Agriculture (USDA) have failed to obtain credible data on the use of antibiotics in food animals, as well as the presence of resistant bacteria in animals and retail meat. After examining the extent to which U.S. agencies have addressed this area of concern, GAO apparently found major gaps in the information needed to understand how livestock antibiotics can contribute “to the emergence of resistant bacteria that may affect humans.” In particular, the report faulted the Food and Drug Administration (FDA) for failing to adequately monitor a 2010 voluntary strategy designed to limit “approved uses of antibiotics” and increase “veterinary supervision of use.” According to GAO, “FDA does not collect the antibiotic use data, including the purpose of use, needed to measure the strategy’s effectiveness.”…
The U.S. Government Accountability Office (GAO) recently delivered its evaluation of how well federal agencies have implemented the nation’s food and agricultural defense policy known as Homeland Security Presidential Directive (HSPD)-9. Established to protect the food supply “against terrorist attacks, major disasters, and other emergencies,” HSPD-9 divides emergency response activities among several agencies, including the Departments of Agriculture (USDA), Health and Human Services, and Homeland Security, the latter of which has designated a system of emergency support functions (ESFs) within a National Response Framework. According to the August 2011 GAO report, however, “There is no centralized coordination to oversee the federal government’s overall progress implementing… HSPD-9.” In testimony before a subcommittee of the U.S. Senate Committee on Homeland Security and Governmental Affairs, GAO Natural Resources and Environmental Director Lisa Shames explained that because this general oversight is lacking, the agencies responsible for HSPD-9 cannot guarantee their “cross-cutting” efforts are “well-designed and…
A recent study has suggested that the rising prevalence of gout, which now reportedly affects 4 percent of Americans, “may be associated” with greater frequency of obesity and hypertension. Yanyan Zhu, et al., “Prevalence of Gout and Hyperuricemia in the US General Population,” Arthritis & Rheumatism, July 28, 2011. Researchers compared data from 5,707 participants in the 2007- 2008 U.S. National Health and Nutrition Examination Survey (NHANES) to NHANES data from 1988-1994. The latest survey also asked participants about their history of gout as diagnosed by a health care professional, with hyperuricemia or elevated uric acid levels defined as a serum urate level greater than 7.0 mg/dL in men and 5.7 mg/dL in women. According to a Boston University Medical Campus press release, when compared to earlier NHANES data, the prevalence of gout and hyperuricemia “was 1% and 3% higher, respectively.” In addition, “further analysis revealed that gout prevalence was higher…
A Japanese research institute recently issued an updated hazard assessment of bisphenol A (BPA) suggesting that the chemical poses minimal or no risk to human health. The Research Institute of Science and Sustainability (RISS), which is part of Japan’s National Institute of Advanced Industrial Science and Technology, examined BPA data “from 2005 onwards” to assess its general toxicity as well as its reproductive toxicity in the next generation. According to the assessment’s abstract, “no toxic effects on the reproductive potential of the next generation except for a slight prolongation of gestational length of F1/F2 at 300 mg/kg bw, and a no-observed-adverse-effect level (NOAEL) of 50 mg/kg bw have been noted.” It also said that BPA carcinogenicity by “oral administration has already been determined to be negative from bioassays.” The abstract added, “with regard to skin irritation, skin sensitization, skin photo-irritability, and photo-sensitization due to BPA, it was believed that there…
