A multidistrict litigation (MDL) court in Missouri has issued a number of rulings on motions for summary judgment and to exclude or limit expert testimony in the bellwether cases involving Texas rice farmers who allege that contamination of the U.S. rice supply with genetically modified (GM) rice caused a precipitous decline in prices for their crops on world markets. In re Genetically Modified Rice Litig., MDL No. 1811 (E.D. Mo., decided October 4, 2010). The court’s pre-trial rulings are similar to its rulings in previous bellwether trials involving farmers in Arkansas, Louisiana, Mississippi, and Missouri. The court determined, among other matters, that (i) the Texas farmers could not sue for violation of a North Carolina statute; (ii) the economic loss doctrine did not bar the plaintiffs’ claims; (iii) the plaintiffs could pursue claims for private nuisance but not for public nuisance; (iv) the defendants cannot assert as a defense that…
A multidistrict litigation (MDL) court has dismissed the claims of 16 plaintiffs who alleged that they or their minor children became ill as a result of eating peanut butter contaminated with Salmonella. In re ConAgra Peanut Butter Prods. Liab. Litig., MDL No. 1845 (N.D. Ga., decided September 29, 2010). According to the court, “The best way to show that peanut butter is contaminated with Salmonella is to test the peanut butter itself. The fact that the peanut butter was recalled does not mean that it was contaminated. In fact, most of the recalled peanut butter was free of Salmonella contamination.” Noting that the plaintiffs could also use circumstantial evidence to show that they ate contaminated peanut butter, the court determined that these plaintiffs could not show that the peanut butter they ate was made at the affected plant during the outbreak period (by means of a product code stamped on…
A federal court in New Jersey has issued a preliminary order granting certification of a nationwide class for settlement purposes in litigation against Unilever U.S., Inc., alleging that reduced-calorie labels for its Breyers Smooth & Dreamy Ice Cream® violated consumer fraud law. Ercoline v. Unilever U.S., Inc., No. 10-01747 (D.N.J., order filed October 4, 2010). The class consists of all U.S. purchasers of Breyers and Unilever branded ice cream products represented as reduced-calorie since April 2004. The court also approved the form and content of the class notice and will allow settlement class members to opt out if they make the request at least 20 days before the final approval hearing, scheduled for March 21, 2011. Objections to the proposed settlement must be filed within 45 days of the class notice publication. According to a news source, Unilever continues to deny that it misrepresented the calorie content of its ice cream…
The U.S. Supreme Court has decided to hear the appeal of case that involves the application of a personal privacy exemption under the Freedom of Information Act (FOIA) to federal agency law enforcement records involving corporations. FCC v. AT&T Inc., No. 09-1279 (U.S., certiorari granted September 28, 2010). The Third Circuit Court of Appeals barred the Federal Communications Commission (FCC) from releasing information about an investigation of AT&T, finding that the company has a right to personal privacy under FOIA’s exemption 7(c). This exemption allows agencies to withhold law enforcement records where their disclosure would result in an invasion of personal privacy. Those opposing the Third Circuit’s interpretation have suggested that if it is upheld, records such as meat inspection reports could be withheld “on the theory that the meat processor’s privacy rights would be invaded because of the public ‘embarrassment’ the corporation might feel if its filthy processing plant conditions were…
A recent study has purportedly linked processed red meat consumption to metabolic syndrome (MetS), which includes health factors such as abdominal obesity and elevated triglycerides, LDL cholesterol, blood pressure, or fasting glucose, or reduced HDL cholesterol. N. Babio, et al., “Association between red meat consumption and metabolic syndrome in a Mediterranean population at high cardiovascular risk: Cross sectional and 1-year follow-up assessment,” Nutrition, Metabolism and Cardiovascular Diseases, September 26, 2010. Researchers evidently conducted cross-sectional analyses on a Mediterranean population at a high risk for cardiovascular disease, evaluating “a 137-item validated semi-quantitative food frequency questionnaire, anthropometric measurements, blood pressure, fasting plasma glucose and lipid profile” at baseline and after one year. The study authors reported that among these individuals, “higher [red meat] consumption is associated with a significantly higher prevalence and incidence of MetS and central obesity.” According to the researchers, the study is “the first that prospectively demonstrates a higher-incidence of…
A new study reportedly claims that young people mistakenly view sugar-sweetened sports beverages as healthy alternatives to soft drinks. Nalini Ranjit, et al., “Dietary and Activity Correlates of Sugar-Sweetened Beverage Consumption Among Adolescents,” Pediatrics, September 27, 2010. University of Texas School of Public Health researchers surveyed 15,283 middle- and high-school students to determine the correlation between consumption of sugar-sweetened beverages and flavored and sports beverages (FSBs) to diet and physical activity. According to the study, researchers discovered that more than 60 percent of boys and more than 50 percent of girls drank at least one soda, sports drink or other sweetened beverage like fruit punch each day, which could lead to yearly weight gain. Students active in sports and other physical activities consumed more sports drinks while those who led more sedentary lifestyles drank more soda. “The most likely explanation for these findings is that FSBs have been successfully marketed as…
The New York Times reports that three-time Tour de France winner Alberto Contador is blaming a steak he ate on a rest day during the race for a drug test positive for clenbuterol. Experts have indicated that the small amount to which he could have been exposed would not have boosted his performance; the drug is apparently sometimes given to cattle illegally to speed up growth and increase muscle mass. The amount of clenbuterol found in Contador’s samples was apparently very small, and the contaminated meat theory has been given considerable credence. Meanwhile, the Spanish cyclist has been provisionally suspended until race authorities determine whether he was using the drug. See The New York Times, September 30, 2010.
A World Trade Organization (WTO) panel has determined that the United States has violated its trade obligations by refusing to allow Chinese chicken parts into the U.S. market, an action that was apparently taken in a 2009 federal spending bill that denied the use of any U.S. Department of Agriculture funding to establish or implement any measure that would allow the importation. The law extended a five-year U.S. ban on Chinese chicken that was imposed during a bird flu outbreak. While the WTO can sanction countries that violate trade rules, this could take several years because the United States has the option to appeal the verdict. According to a news source, the Office of the U.S. Trade Representative has indicated that the restrictions were temporary and are due to expire soon. See USA Today, September 29, 2010.
Two days after the Center for Science in the Public Interest (CSPI) announced that Ben & Jerry’s had agreed to phase out claims that its ice creams and frozen yogurts were “All Natural,” when some product ingredients are processed, a putative class action was filed in a California federal court against the company seeking money damages for false advertising and an injunction to stop the company from making such claims. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 (N.D. Cal., filed September 29, 2010). In August 2010, CSPI claimed that 48 of the company’s products were mislabeled because they contained unnatural ingredients, and the watchdog threatened to bring its concerns to the Food and Drug Administration (FDA). More details about CPSI’s action appear in Issue 360 of this Update. On September 27, CSPI praised the company for amicably resolving the dispute; the company’s response indicated that it would remove the…
A federal court in California has determined that an agency decision to allow planting of genetically modified (GM) sugar beet stecklings (seedlings) without conducting an environmental assessment likely violated federal law and has ordered the parties to file briefs as to the appropriate remedy now that most of the stecklings authorized have been planted. Ctr. for Food Safety v. Vilsack, No. 10-04038 (N.D. Cal., decided September 28, 2010). Additional information about the lawsuit’s challenge to action taken by the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) appear in Issue 363 of this Update. The court first addressed whether seed companies could intervene in the matter and ruled that they could do so as to the remedies, but not as to the merits, that is, whether APHIS violated federal environmental laws including the National Environmental Policy Act (NEPA) by issuing the permits without conducting an environmental review. The…
