KFC franchisees have reportedly made their closing arguments before a Delaware Chancery Court in a dispute over the company’s advertising policies. They contend that 1997 amendments to the company’s corporate documents gave them the authority to propose and approve different advertising recommendations. The lawsuit was apparently filed after KFC Corp. launched an advertising campaign for grilled chicken menu offerings, which the franchisees opposed for their potential to dilute the company’s fried chicken brand. According to a news source, the franchisees argued that while they can veto funding for advertising by majority vote, this power is illusory because KFC could institute delays, thus causing a blackout that would inflict significant damage on franchisees. The company apparently countered that the franchisees do have the right to make recommendations or modifications to the company’s advertising policy and have exercised that right on several occasions. Still, the company reportedly indicated that the franchisees cannot have…
A Florida man has sued a Houston’s restaurant and its manager for failing to train servers to explain to patrons how to eat grilled artichokes, contending that their negligence led to his hospitalization and exploratory bowel surgery. Carvajal v. Hillstone Restaurant Group, Inc., No. 10-57757 CA 03 (Fla. Cir. Ct., Miami Dade Cty., filed October 27, 2010). He alleges ordering a special item offered by a server, “which Plaintiff advised he had never seen or heard of previously.” According to the complaint, plaintiff Arturo Carvajal was not instructed that the outside portion of the leaf should not be eaten, although the restaurant “had a duty to use reasonable care with respect to the serving and explanation of items not described on the menu; which by their appearance as served appeared wholly consumable.” He is seeking damages in excess of $15,000.
Nestlé Prepared Foods Co. has filed a complaint against the suppliers of ingredients for its Lean Cuisine® frozen meals, which it was apparently forced to recall when it learned that some of the meals were contaminated with foreign, hard blue plastic pieces. Nestlé Prepared Foods Co. v. Nat’l Food Trading Corp., No. 10-1077 (D. Utah, filed October 29, 2010). According to the complaint, the plastic pieces were mixed into the sun-dried tomatoes that defendants sold to Nestlé. Customer complaints purportedly alerted Nestlé to the contamination, and “[a]t least one consumer reported an injury caused by the hard blue plastic materials.” Recalling some 880,000 pounds of frozen meals allegedly caused Nestlé to incur “substantial losses, including, but not limited to, refunds to customers, the value of the recalled meals, the value of the unusable sun dried tomatoes, cancelled orders, and the costs of shipping, storage, plant operations, and investigation, as well as…
The California Supreme Court has denied a petition for review filed by fast food restaurants seeking to overturn an intermediate appellate court ruling allowing further proceedings on claims that they violated Proposition 65 by selling grilled chicken products to consumers without appropriate warnings about carcinogens created by the cooking process. Physicians Comm. for Responsible Med. v. McDonald’s Corp., No. S186566 (Cal., decided October 27, 2010). The intermediate appellate court determined that federal law did not preempt the claims. Additional information about its ruling appears in Issue 360 of this Update.
A California court of appeals has denied the request of a former Chipotle employee to certify a class of current and former non-managerial employees alleging that the company violated labor laws by denying them meal and rest breaks. Hernandez v. Chipotle Mexican Grill, Inc., No. B216004 (Cal. Ct. App., 2d Dist., modified opinion filed October 28, 2010). The court agreed with the defendant that California law requires that employers provide, but not ensure, that employees take breaks. The court also found no error in the trial court’s denial of class certification because the court record showed that “Chipotle did not have a universal practice with regard to breaks.” Apparently, while the company paid for meal and rest breaks, some employees declared that they always missed meal breaks, some missed meal breaks but not rest breaks, some were not denied meal breaks, and others declared their breaks were delayed or interrupted…
The Second Circuit Court of Appeals has affirmed a district court’s dismissal of claims filed by a 76-year-old woman who alleged that she was seriously burned when trying to remove the lid from a cup of tea she purchased at Starbucks. Moltner v. Starbucks Coffee Co., No. 09-4943 (2d Cir., decided November 3, 2010). The court issued a non-precedential summary order to affirm the grant of defendant’s summary judgment motion. According to the court, the district court correctly excluded the testimony of plaintiff’s experts because they were unreliable under Federal Rule of Evidence 702 standards. In this regard, the court stated, “[w]ithout the testimony of her expert witnesses, Moltner’s claims fail because there is no way for a reasonable juror to determine, with respect to her defective design claim, whether the risks posed by the product’s design outweighed its utility, or, with respect to her negligence claim, whether Starbucks failed to…
The San Francisco Board of Supervisors has given preliminary approval to an ordinance (No. 101096) that would prohibit restaurants from offering toy giveaways in children’s meals deemed too high in calories, salt or fat. Approved by an 8-to-3 vote on November 2, 2010, the legislation reportedly has enough votes to override Mayor Gavin Newsom’s expected veto when the bill comes before the board for a final vote. If approved, the law would take effect in December 2011. Under the ordinance, restaurants would be prohibited from offering “incentive items” such as toys, trading cards or admission tickets in meals containing more than 600 calories and 640 milligrams of sodium, and if fat makes up more than 35 percent of the calories, except for fats contained in nuts, seeds, eggs, or low-fat cheese. It would also require meals to include a certain amount of fruits and vegetables. District 8 Supervisor Bevan Dufty…
The Michigan Liquor Control Commission (MLCC) has rescinded “the approval of all alcohol energy drinks [AEDs],” citing “widespread community concerns aired by substance abuse prevention groups, parent groups and various members of the public, as well as the Food and Drug Administration’s (FDA’s) decision to further investigate these products.” According to a November 4, 2010, press release, the commission also believes that AED packaging “is often misleading, and the products themselves can pose problems by directly appealing to a younger customer, encouraging excessive consumption, while mixing alcohol with various other chemical and herbal stimulants.” The MLCC’s order gives retailers 30 days to remove AEDs from commerce and includes a list of affected products. “The Commission’s concern for the health, safety and welfare of Michigan citizens and the fact that there is not enough research to validate that these products are safe for consumption has made me believe that until further…
Beyond Pesticides, a Washington, D.C.-based organization opposed to the use of pesticides, has issued a call for comments to the U.S. Department of Agriculture’s National Organic Program (NOP) supporting recommendations by the National Organic Standards Board that would prohibit the use of engineered nanomaterials from certified organic products. According to the organization’s blog, the board passed the recommendations during its October 25-26, 2010, meeting. Among other matters, the recommendations include a working definition for engineered nanomaterials and propose that engineered nanomaterials be prohibited in both organic production processing and packaging. The board also called for NOP to schedule a symposium on the topic to consider whether the definition is adequate and enforceable and the best regulatory approach to address the matter. Beyond Pesticides is concerned about the unknown “long-term impacts of nanomaterials on human health and the environment.”
The Alcohol and Tobacco Tax and Trade Bureau (TTB) has published several notices pertaining to the regulation of wine and spirits. Comments on all are requested by January 3, 2011. Responding to recent action taken by the Food and Drug Administration with respect to cochineal extract and carmine, which will have to be declared on food labels because of their potential for severe allergic reactions, TTB has proposed requiring the disclosure of these ingredients on wines, distilled spirits and malt beverages. Cochineal extract and carmine are derived from an insect native to subtropical South America and Mexico. According to TTB, its proposal “would allow consumers who are allergic to cochineal extract or carmine to identify and thus avoid alcohol beverage products that contain these color additives.” TTB has also proposed amending wine labeling regulations “to allow the labeling of imported wines with multistate appellations of origin.” According to the agency, this…
