A federal court in Florida has dismissed without prejudice a putative class action alleging that the Wm. Wrigley Jr. Co. misled consumers by claiming that its Eclipse® Breeze chewing gum contains “Cardamom to Neutralize the Toughest Breath Odors.” Nichols v. Wm. Wrigley Jr. Co., No. 10-80759 (S.D. Fla., decided January 19, 2011). A similar lawsuit, filed in August 2010 in California, is discussed in Issue 360 of this Update. According to the court, the plaintiff pleaded sufficient facts “to establish the falsity of the representation,” but he did not plead sufficient facts as to each of his claims of fraudulent concealment, negligent misrepresentation, intentional misrepresentation, and breach of express warranty. The court dismissed the plaintiff’s claim for unjust enrichment because “he does not lack an adequate legal remedy.” The plaintiff was given five days to file an amended complaint.
The U.K. Food Standards Agency (FSA) has issued draft regulations to implement two European directives setting specific purity criteria for four food additives and one sweetener. According to FSA, the new additives are E392 extracts of rosemary, E427 cassia gum, E961 neotame, E1203 polyvinyl alcohol, and E1521 polyethylene glycol. The draft regulations also amend “existing specifications to bring them in line with international safety standards and to take account of new technological developments.” Effective March 31, 2011, the new rules will not “impose any additional costs to manufacturers.” FSA will accept comments on the draft until February 11, 2011. See FSA Press Release, January 17, 2011.
The European Food Safety Authority (EFSA) has requested public comments on its draft “Guidance on risk assessment concerning potential risks arising from applications of nanoscience and nanotechnologies to food and feed.” The comment period closes February 25, 2011. The draft guidance outlines under what circumstances nanomaterials in food and animal feed should be tested for potential health risks and how the risk assessment process should be conducted. According to the guidance, the risk of an engineered nanomaterial “will be determined by its chemical composition, physico-chemical properties, its hazard characterization and potential exposure.” At an initial stage for the proposed use of a nanomaterial in food or feed applications, where internal exposure, a high level of reactivity or mobility, and persistence of the nanomaterial exist, “in-depth testing” would be appropriate. While the guidance recognizes that characterization parameters “will depend on the nature, functionalities, and intended uses of the” engineered nanomaterial, certain…
The Federal Trade Commission (FTC) has announced that final approval was given to a settlement reached with a Nestlé S.A. subsidiary over claims that its children’s drink, BOOST Kid Essentials®, conferred specific health benefits, such as reducing the risk of colds and flu and reducing the duration of acute diarrhea. More information about the settlement appears in Issue 356 of this Update. And the summary of a related lawsuit that the National Consumers League filed against the company can be found in Issue 360 of this Update. The FTC said that this case was the agency’s “first one challenging advertising for probiotics.” See FTC News Release, January 18, 2011.
The U.S. Department of Agriculture (USDA) has issued a final rule establishing a voluntary labeling program for “biobased” products made from renewable biological ingredients. Part of the USDA BioPreferred Program, which also administers procurement preferences for federal agencies, the labeling initiative applies to those products certified as containing a prescribed amount of renewable plant, animal, marine, or forestry material. According to a January 19, 2011, press release, “This new label will clearly identify biobased products made from renewable resources, and will promote the increased sale and use of these products in the commercial market and for consumers.” The BioPreferred Program has apparently designated “approximately 5,100 biobased products” in 50 categories, but estimates that “there are 20,000 biobased products currently being manufactured in the United States.” As USDA Deputy Secretary Kathleen Merrigan stated, “Today’s consumers are increasingly interested in making educated purchasing choices for their families. This label will make those…
Three congressional Republicans assert that the U.S. Department of Agriculture (USDA) has no authority to weigh economic factors in conducting an environmental review for genetically engineered (GE) alfalfa under the National Environmental Policy Act and the Plant Protection Act. In a January 19, 2011, letter submitted to USDA Secretary Tom Vilsack, they vilify him for including an option that would impose geographic restrictions and isolation distances on the crop. House Agriculture Committee Chair Frank Lucas (R-Okla.) and Senators Saxby Chambliss (R-Ga.) and Pat Roberts (R-Kan.) contend that the option was included in the final environmental impact statement (EIS) solely “to interfere in planting decisions based on the risk of economic harm due to pollen drift.” According to the congressmen, the option “is a poor substitute for existing options available to farmers to amicably resolve the concerns regarding co-existence of agriculture biotechnology, conventional and organic crops.” They also claim that “the implications…
President Barack Obama (D) has signed an executive order establishing principles for agencies to follow in adopting regulations addressing such matters as food safety, toxic chemicals, labor, energy, and the environment. The order also requires a review of existing regulations to eliminate or revise those “that may be outmoded, ineffective, insufficient, or excessively burdensome.” A memorandum to agency heads accompanying the order affirms the administration’s commitment “to eliminating excessive and unjustified burdens on small businesses, and to ensuring that regulations are designed with careful consideration of their effects, including their cumulative effects.” A second memorandum calls for federal agencies to develop plans to make their regulatory compliance and enforcement activities “accessible, downloadable, and searchable online.” See Office of White House Press Secretary News Release, January 18, 2011.
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed a no significant risk level (NSRL) of 16 micrograms per day for 4-methylimidazole (4-MEI), a chemical commonly present in foods such as wine, soy sauce and Worcestershire sauce after they have been cooked. The food industry was apparently unable to prevent OEHHA from listing the ubiquitous chemical as a carcinogen under Proposition 65 (Prop. 65) and may now be considering challenging the NSRL. The proposed threshold will reportedly require Prop. 65 warnings on thousands of products. The chemical is also apparently used in the production of some pharmaceuticals. OEHHA requests comments by February 21, 2011. See Inside Cal/EPA, January 13, 2011.
A recent study has reportedly questioned the role of HDL cholesterol in lowering heart disease risk, suggesting instead that one specific protein or compound in so-called “good” cholesterol might be better than others at removing bad cholesterol. Amit Khera, et al., “Cholesterol Efflux Capacity, High-Density Lipoprotein Function, and Atherosclerosis,” New England Journal of Medicine, January 13, 2011. According to the study abstract, researchers measured cholesterol efflux capacity—or how well HDL extracted cholesterol from cells—in “203 healthy volunteers who underwent assessment of carotid artery intima–media thickness, 442 patients with angiographically confirmed coronary artery disease, and 351 patients without such angiographically confirmed disease.” The results evidently showed that overall HDL levels were “a less effective” predictor of heart disease than HDL’s ability to remove cholesterol. As one study author noted, these findings could help researchers identify “a particular protein that’s a major determinant” of cholesterol efflux capacity, thus allowing them to test for poor…
“I don’t want any more government interference than the next guy, but I believe that the precedent has already been set for successful government intervention on behalf of improving our health,” writes Hanover College Kinesiology and Integrative Physiology Professor Bryant Stamford in the first of a two-part article comparing obesity prevention tactics to federal curbs on tobacco advertising. Acknowledging the public outcry against fast-food incentive bans, Stamford suggests that the government would not set “a dangerous precedent” insofar as it has already made a concerted effort to stymie youth tobacco use with product warnings and advertisement restrictions. Without these measures, he claims, “the cigarette industry would continue to run roughshod over the American public with the specific purpose of capturing us when we are young, addicting us and ensuring that the majority of the addicted will be customers for life.” For Stamford, the parallels between the tobacco and fast food…
