A California resident has filed a putative class action against Dr. Pepper Snapple Group, Inc., in federal court, alleging that the company has violated consumer protection laws in labeling and promoting its “Snapple® Acai Mixed Berry Red Tea Immunity” product because “no known clinical study . . . adequately supports Snapple’s claims.” Meaunrit v. Dr. Pepper Snapple Group, LLC, No. 10-5153 (N.D. Cal., filed November 12, 2010). Seeking to certify a class of all product purchasers, the named plaintiff alleges violations of California’s Unfair Competition Law, False Advertising Law and Consumer Legal Remedies Act, as well as breach of express warranty. She asks for restitution, disgorgement, damages, and attorney’s fees and costs in excess of $5 million. Plaintiff Julia Meaunrit and her counsel, Florida-licensed Howard Rubinstein, previously filed an unsuccessful class-action lawsuit in California against a food company alleging inadequate cooking instructions for its frozen pot pies. Details about that…
The Federal Trade Commission (FTC) has filed a motion to dismiss a complaint charging the agency with exceeding its authority in requiring Food and Drug Administration (FDA) pre-approval for health-related claims on food products, violating advertisers’ constitutional rights by requiring compliance with these standards and failing to comply with notice-and-comment rulemaking procedures in establishing the standards. POM Wonderful LLC v. FTC, No. 10-1539 (D.D.C., motion filed November 16, 2010). Additional information about POM Wonderful’s complaint appears in Issue 364 of this Update. FTC contends that the court lacks jurisdiction to consider the matter because the complaint is moot, the company lacks standing, the company is attempting to preclude an enforcement action, and the complaint does not challenge final agency action. Specifically, FTC claims (i) the agency merely created a possible remedy of FDA pre-approval in consent agreements with food producers making health-related claims and not an enforceable rule; (ii) it…
A federal court in California, presiding over two putative class actions alleging that I Can’t Believe It’s Not Butter!®, Country Crock® and other cholesterol-free margarines were falsely advertised as nutritious, has denied a joint motion for preliminary approval of a class settlement. Red v. Unilever PLC, No. 10-00387 (N.D. Cal., order filed November 16, 2010). The court was concerned about “the waiver of certain damages claims and need for opt-out in a Federal Rule of Civil Procedure 23(b)(2) injunctive class where the proposed class received no monetary relief.” Scheduling a settlement hearing for the parties with a special master on or before December 13, 2010, the court allowed the parties to continue negotiating and expanded the special master’s authority “to negotiate a revised settlement to address the Court’s concerns.” The cases, filed in 2009, involve claims that butter-substitute makers have violated consumer protection laws by promoting their products as “healthy”…
San Francisco Mayor Gavin Newsom (D) has reportedly vetoed an ordinance that would have prohibited restaurants from offering toy giveaways in children’s meals deemed too high in calories, salt or fat. Approved in an 8-to-3 vote on November 2, 2010, by the city’s Board of Supervisors, the ordinance has the minimum amount of support needed to override the veto, an action which apparently has not yet been scheduled. The ordinance was discussed in Issue 371 of this Update. Announcing the veto on November 12, Newsom called the legislation an “intrusive and ineffective approach” to combat childhood obesity. “Parents, not politicians, should decide what their children eat, especially when it comes to spending their own money,” he said in a statement. “Despite its good intentions, I cannot support this unwise and unprecedented government intrusion into parental responsibilities and private choices.” According to the California Restaurant Association, the legislation may face a…
According to a news source, senators representing the Independent and Australian Greens parties have introduced legislation that would require food products to be labeled if they contain genetically modified (GM) material, regardless of amount or how it came to be incorporated in the product. The “Food Standards Amendment (Truth in Labelling—Genetically Modified Material) Bill 2010” would require Food Standards Australia New Zealand to develop labeling standards and establish due diligence guidelines for products claiming to be GM free. Debate on the proposal was adjourned. Senator Nick Xenophon (I) said on introducing the bill, “Not enough Australians seem to realize the implications that the rapid introduction of genetically modified materials may have on our health and potentially on our ability to produce safe foods and foods free from GM contamination. Truth in labeling is vital to enable Australian consumers to have an informed choice about the food they eat and the…
The EU High Level Forum for a Better Functioning Food Supply Chain recently held its first meeting in Brussels, Belgium, where it reportedly discussed a work plan “to boost competitiveness and to promote best contractual practices in the European food sector.” Led by Internal Market and Services Commissioner Michel Barnier, Health and Consumer Policy Commissioner John Dalli, and Agricultural and Rural Development Commissioner Dacian Cioloş, the initiative involves 45 representatives from member states, companies “dealing with food production, processing or distribution,” and nongovernmental public interest groups. These participants are charged with following the recommendations of the High Level Group on the Competitiveness of the Agro-Food Industry and implementing the European Commission’s communication titled “A better functioning food supply chain in Europe” (COM (2009) 591). The forum will also feature several expert platforms focused on (i) “business to business contractual practices in the food supply chain,” (ii) “food price monitoring,” (iii)…
The Environmental Protection Agency (EPA) has announced the addition of 134 chemicals to its second Tier 1 screening list under the Endocrine Disruptor Screening Program (EDSP). Among those chemicals listed are DBCP, 1,4-dioxane, acetaldehyde, acrolein, acrylamide, benzene, benzo(a)pyrene, chlordane, HCFC-22, perchlorate, PFOS, PFOA, and polychlorinated biphenyls. Comments are requested by December 17, 2010. According to EPA, “[t]he list includes chemicals that have been identified as priorities under the Safe Drinking Water Act (SDWA) and may be found in sources of drinking water where a substantial number of people may be exposed. The list also includes pesticide active ingredients that are being evaluated under EPA’s registration review program to ensure they meet current scientific and regulatory standards.” Following public comment and review, “EPA will issue test orders to pesticide registrants and the manufacturers of these chemicals to compel them to generate data to determine whether their chemicals may disrupt the estrogen,…
The Federal Trade Commission (FTC) has announced the unanimous approval of a final order settling charges that a former POM Wonderful LLC executive made false and unsubstantiated claims that the company’s pomegranate products prevent or treat heart disease and prostate cancer. Under the agreement, Mark Dreher, a former POM Wonderful vice president, does not admit to violations of the law, but will cooperate in FTC’s investigation and action against his former company. He also agreed to abide by the conditions prescribed for making any health-related claims for a food or drug product in the future and to give present and future employees copies of the order. According to a news source, FTC has scheduled a May 24, 2011, hearing before an administrative law judge for POM Wonderful to respond to charges that it has made allegedly false health-related product claims. Dreher has agreed to participate in interviews with the agency in…
A recent investigation by NBC’s Today show has apparently revealed that some imported seafood “may contain toxic chemicals that can cause serious health problems.” Testing conducted by Alabama, Georgia, Mississippi, and Oklahoma authorities has reportedly found contamination in shrimp, catfish, crabmeat and tilapia imported from China, Indonesia Malaysia, Taiwan and Vietnam. “Footage taken by a U.S. advocacy group of seafood being raised in Vietnam, for example, showed fish in dirty sewage water, pumped with toxic antibiotics and banned drugs just to keep them alive, boosting production and driving down costs,” states the Today report, which claims that the Food and Drug Administration (FDA) tests less than 2 percent of all seafood from overseas. Those test results allegedly indicated that in 2010, 8 percent of the sampled seafood from China and 16 percent from Taiwan was tainted with chemicals and drugs prohibited in the U.S. food supply. In response, FDA released…
The Food and Drug Administration (FDA) has reportedly “completed its most recent check of amounts of lead in some commercial juice and food products that contain fruit,” finding no cause for consumer concern. FDA tested apple juice, grape juice, peach slices, pears, mixed fruit, and fruit cocktail in response to a 2009 study by the Environmental Law Foundation, which sent notices “to numerous manufacturers of juice and packaged fruit products alleging the companies were not in compliance with the California Safe Drinking Water and Toxic Enforcement Act of 1986, also known as California Proposition 65, because the manufacturers failed to disclose that the products contained lead.” According to the most recent results, “Almost all the products FDA tested contained a small amount of lead, but in each case the level found would not pose an unacceptable risk to health.” The agency has further explained that lead in soil “can be deposited…
