The September 2011 issue of the Centers for Disease Control and Prevention’s research and policy journal, Preventing Chronic Disease, features a special section dedicated to “Ethical Issues in Interventions for Childhood Obesity,” where contributors with Public Health Law & Policy, Yale University’s Rudd Center for Food Policy & Obesity, and other organizations discuss how best to balance government’s public health role with private rights and interests. In particular, the section includes articles that explore (i) strategies to limit youth food marketing in municipal spaces not already regulated by federal agencies; (ii) an ethical framework for evaluating popular policies, such as menu calorie labeling and soft drink taxes; (iii) perspectives from the Arkansas Act 1220 of 2003, “the first comprehensive legislative initiatives to combat childhood obesity”; (iv) ethical family and school interventions; and (v) the economic rationale for government intervention. “During the past decade, people throughout the country—from rural communities to…
The American Diabetes Association, American Heart Association and Center for Science in the Public Interest (CSPI) have joined cities nationwide in a new initiative designed “to reduce diet-related disease” by targeting sugar-sweetened beverage consumption. Dubbed “Life’s Sweeter with Fewer Sugary Drinks,” the campaign seeks to decrease “average consumption of sugary drinks to roughly 3 cans per person per week by 2020,” a goal reportedly backed by officials in Boston, Los Angeles, Philadelphia, San Antonio, and Seattle, as well as 110 local and national health organizations. According to an August 31, 2011, CSPI press release, the campaign’s website urges “individuals and families to take the Life’s Sweeter challenge to drink fewer or no sugary drinks,” including “fruit-flavored beverages with little or no juice, sweetened iced teas, lemonades, energy drinks, and so-called sports drinks.” The groups have also called on employers, hospitals and government agencies “to adopt policies that would reduce soda consumption,”…
George Washington University Law School Professor John Banzhaf, who teaches “public interest” law, has issued a press release discussing recent class action claims against ConAgra over its “All Natural” cooking oil representations. According to Banzhaf, such litigation could be in the vanguard of many similar lawsuits against food companies that would be targeted by “both money-hungry lawyers and public-interest attorneys.” He discusses the litigation that he and his students successfully filed against McDonald’s for allegedly misleading consumers about the content of the oil in which it cooks its French fries and notes that many manufacturers claiming to make “all natural” foods could be held liable in consumer fraud actions if the ingredients are genetically engineered or contain high-fructose corn syrup. Banzhaf concludes by suggesting, in light of Forbes calling obesity-related litigation “the next tobacco,” that “perhaps ‘all-natural’ is the next fat.” Banzhaf made a name for himself decades ago by…
The most recent issue of the Minnesota Journal of Law, Science & Technology includes an article titled “Food Advertising and Childhood Obesity: A Call to Action for Proactive Solutions.” Co-authored by online law instructor Roseann Termini and Widener University School of Law students Thomas Roberto and Shelby Hostetter, the article explores whether food advertising is related to the epidemic of child obesity and what can be done to reduce its purported effects. Contending that government regulation of food advertisements directed at children is necessary because “children lack the cognitive skills to discern actual nutritional information amidst a veil of attention grabbing marketing techniques,” the authors discuss what regulatory options would best police the industry. While they note the constitutional issues raised by bans or limitations on commercial advertising, the authors apparently see no impediments to government overseeing and enforcing “the internal policies of food manufacturers,” aggressive enforcement of established youth…
According to a news source, Del Monte Fresh Produce NA Inc. has indicated, as part of its campaign to counter allegations that its cantaloupes, imported from Guatemala, were tainted with Salmonella, that it intends to sue the Oregon Health Authority and a public health official for making “misleading allegations” about its products. Company Vice President Dennis Christou reportedly said, “These statements were made despite the lack of a substantive factual basis for the allegations and the failure to adequately investigate the true source of the contamination.” Information about litigation Del Monte filed against the Food and Drug Administration (FDA), seeking to lift an import alert related to its Guatemalan cantaloupes appears in Issue 407 of this Update. The Center for Science in the Public Interest (CSPI) has criticized the company for taking action against government agencies, stating in a press release, “FDA and Oregon used state-of-the-art techniques to identify the food…
A Texas resident has filed a putative class action against the Kashi Co. and its parent, the Kellogg Co., in a California federal court, alleging that the company falsely labels and markets its products as “all natural” when they actually contain processed and synthetic ingredients, some of which are not generally recognized as safe by the Food and Drug Administration (FDA). Bates v. Kashi Co., No. 11-1967 (S.D. Cal., filed August 24, 2011). Seeking to certify a nationwide class of consumers, the plaintiff names in the complaint dozens of ingredients used in Kashi snack, cereal, pizza, fruit bar, waffle, shake, trail mix, cookie, and cracker products, explains how they are produced and indicates whether they or the processes that create them are hazardous or toxic. For example, the plaintiff claims that sodium selenite is a hazardous substance. “The FDA has not declared it generally recognized as safe as a food…
A federal court in California has denied the defendant’s motion to dismiss the plaintiffs’ first amended consolidated complaint in a case involving claims that “Ferrero misleadingly promotes Nutella® spread as healthy and beneficial to children when in fact it contains dangerous levels of fat and sugar.” In re: Ferrero Litig., No. 11-205 (S.D. Cal., decided August 29, 2011). According to the court, the plaintiffs sufficiently pleaded exposure to a long-term advertising campaign and reliance on the campaign in making their purchasing decisions to confer standing on them to bring their claims under California’s Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act.
A federal court in California has granted in part the motion to dismiss filed by Arizona Beverages USA LLC, in a putative class action alleging the violation of consumer fraud and false advertising laws due to company representations that its products are “Natural,” “All Natural” and “100% Natural.” Ries v. Arizona Beverages USA LLC, No. 10-01139 (N.D. Cal., decided August 25, 2011). The plaintiffs contend that the products are not natural in that they contain high-fructose corn syrup and an artificially produced citric acid. At issue in the defendants’ motion was whether the plaintiffs had adequately pleaded the claims in their first amended complaint under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). According to the court, the complaint adequately pleaded fraud in connection with the plaintiffs’ allegations arising out of the product labels. The court concluded, “These allegations are not inherently implausible and are sufficient for purposes of Rule 9(b).” The…
The Food Safety and Inspection Service (FSIS) has announced the availability of final compliance guidelines for video monitoring at federally inspected establishments, such as meat and poultry plants. The guidelines, which have received Office of Management and Budget approval, stem from a 2008 USDA Office of Inspector General (OIG) recommendation that called for FSIS to determine whether such monitoring would be beneficial for “slaughterhouse establishments.” Additional information about the guidelines appears in Issue 369 of this Update. Although not mandatory, in-plant video monitoring can be used to strengthen food safety and humane animal-handling practices, and to monitor product inventory and building security, according to FSIS. The agency has provided the guide to help those plants choosing this method to create records for maintaining “compliance with [f]ederal regulations, including humane treatment of livestock and the use of good commercial practices in poultry.” It also “provides information on issues establishments should consider…
Wired magazine’s “Superbug” blogger Maryn McKenna recently published an article questioning China’s food safety record after reports surfaced that 11 people from one Xinjiang province village died “and anywhere from 120 to 140 were sickened” by vinegar contaminated with ethylene glycol. According to McKenna, “The vinegar had been stored in barrels that previously contained antifreeze,” although investigators have not yet determined “whether the vinegar was put in the barrels out of ignorance, making it a problem of accidental contamination, or deliberately by an unscrupulous producer seeking to cut corners.” In either case, McKenna warns, the scandal closely follows allegations that “aged” vinegar from Shanxi province is “dosed with industrial acid in order to cut fermentation time and turn out batches faster.” It also adds to a growing roster of China’s food safety problems that purportedly include “the meat that glowed in the dark; the tainted buns; the exploding watermelons; the…
