According to a news source, a federal court in Virginia, adopting a magistrate judge’s recommendation, has approved a $12 million settlement that will compensate those who became ill or died after consuming products containing Salmonella-contaminated peanuts. In re: Peanut Butter Corp. of Am., No. 10-cv-27 (W.D. Va., decided September 2, 2010). Among the 122 eligible claimants are 45 minors and nine wrongful death claimants. The contaminated peanut butter and peanut paste were used in hundreds of products and led to a massive recall of foods such as candy, crackers and cookies. The outbreak purportedly sickened more than 700 people throughout the country and was linked to nine deaths. The settlement has reportedly been funded by the insurance carrier for the bankrupt peanut company. See Mealey’s Litigation Report: Food Liability, September 2, 2010. Meanwhile, The Associated Press (AP) has reported that the peanut company’s former president is currently employed as an industry consultant.…
A federal court in California has denied a walnut producer’s request to dismiss claims alleging that the company falsely advertises its products by asserting that the omega-3 in walnuts has certain health benefits. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., filed September 3, 2010) (unpublished). Alleging violations of California consumer protection laws, the plaintiff claims that the “statements are misleading because the Shelled Walnut products do not provide the health benefits claimed on the package labels.” The defendant argued that the plaintiff’s claims were preempted by the Federal Food, Drug, and Cosmetic Act and Nutrition Labeling and Education Act. The court disagreed, finding neither express nor implied preemption. According to the court, the claims either did not fall within the scope of federal law or state law imposed identical requirements, which are allowed under federal law.
A federal court in New York recently refused to certify a statewide class of consumers who allege that Snapple Beverage Corp. misled them by marketing its products as “all natural” when they actually contain high-fructose corn syrup (HFCS). Weiner v. Snapple Beverage Corp., No. 07-8742 (S.D.N.Y., order entered August 5, 2010). The court apparently determined that individual issues, such as causation, injury and damages, would predominate over common ones. According to the court, “Individualized inquiries would be required to determine, for instance whether class members were fully informed about the inclusion of HFCS in Snapple beverages, whether they believed HFCS to be natural, and whether they continued to purchase Snapple despite their beliefs concerning HFCS. Such individual issues would also dwarf any issues of law or fact common to the class.” The court also reportedly determined that the named plaintiffs did not proffer a suitable methodology for establishing causation and…
Finding the plaintiffs’ state-law claims preempted, a federal court in California has dismissed a putative class action alleging that the Kroger Co. falsely labeled its margarine and graham crackers as “0g Trans Fat per serving” and “a Cholesterol Free Food,” when they actually contain various hydrogenated oils. Red v. The Kroger Co., No. 10-01025 (C.D. Cal., decided September 2, 2010). According to the court, the Food and Drug Administration has promulgated specific regulations on the use of these terms, and because the products at issue comply with the requirements under which the terms can be used, the plaintiffs’ claims are expressly preempted under the National Labeling and Education Act of 1990. In the court’s words, “Plaintiffs cannot escape the fact that they seek to enjoin exactly what federal law expressly permits.” Alleging the violation of California consumer protection statues, the plaintiffs had sought an order compelling the defendant to (i) cease…
Concerned about regulatory coordination issues, the omission of new environmental data and an apparent failure to recognize collaborative stakeholder efforts, nanotech industry interests have reportedly urged Cal/EPA’s Office of Environmental Health Hazard Assessment (OEHHA) and researchers with the University of California at San Francisco (UCSF) to revise a draft April 2010 report on nanomaterial regulation. Additional information about the report appears in Issue 346 of this Update. The draft report contains broad recommendations for state regulation of nanoscale materials, and industry is apparently concerned that its findings do not account for rapidly emerging developments. According to a letter submitted to the agency in August 2010, the draft report fails to recognize the efforts of industry, government agencies and other stakeholders to address many of the questions raised in the report, nor does it discuss the “virtual explosion of research, information and real progress in addressing these matters over the past…
The U.K. Food Standards Agency (FSA) has announced that as of September 1, 2010, the agency handed over several responsibilities to the departments of Health (DH) and Environmental, Food and Rural Affairs (Defra). Under the restructuring—which does not currently apply to operations to Scotland, Wales and Northern Ireland—FSA in England will continue to handle the following safety aspects of food labeling: (i) “expert scientific advice on the food safety aspects of date marking”; (ii) “assessment and labeling of ingredients/foods with food safety implications (e.g. allergens, glycols, high caffeine, high glycyrrhizinic acid)”; (iii) “food safety aspects of organic food and of foods controlled by compositional standards”; (iv) “treatments and conditions of use with food safety implications (e.g. quick frozen foods, raw drinking milk and pasteurisation, food contact materials)”; (v) “GM and novel foods (including use of nanotechnology)”; (vi) “animal feed, including Codex Intergovernmental Task Force on Animal Feeding”; (vii) “food safety…
A coalition representing more than 40 consumer, environmental and scientific groups has submitted a comment to the Canadian General Standards Board Committee (CGSBC), objecting to several provisions in a proposed Canadian Organic Aquaculture Standard. According to a press release, the joint letter alleges that the draft standard “is contrary to the basic principles of organics as it would allow certification of net pen farmed salmon” and other carnivorous finfish. The signatories take particular umbrage at the sections relating to net pen production that would reportedly permit (i) antibiotic and pesticide use; (ii) “uncontrolled” waste disposal into the ocean; (iii) unlimited use of “sustainable” wild fish in feed; and (iv) feed containing 30 percent or less “non-organic, unsustainable sources” if organic sources are not available. The letter also raises concern about “the spread of disease and parasites lethal to wild fish,” as well as the possibility of escaping farm fish and…
The U.S. Department of Agriculture’s National Organic Program (NOP) has prepared a handbook that provides guidance and instructions for those who own, manage or certify organic businesses. In addition to federal regulations and recordkeeping requirements, the first-edition handbook covers topics that include: (i) “the allowance of green waste in organic production systems”; (ii) “approval of liquid fertilizers in organic production”; (iii) “certification of organic yeast”; (iv) “processed animal manures in organic crop production”; (v) “reassessed inert ingredients”; and “the calculation of dry matter intake for NOP’s access to pasture requirements.” See USDA Press Release, September 2, 2010. In a related development, USDA’s Agricultural Marketing Service (AMS) has reportedly issued new NOP enforcement procedures to ensure that “all complaints of alleged violations and civil penalties are consistently handled.” NOP will now work with accredited certifying agents to investigate complaints about alleged violations, in addition to handling enforcement. “The changes we are…
The Food and Drug Administration (FDA) has notified the presidents of the Dr. Pepper Snapple Group and Unilever, Inc. warning them that their green tea products are misbranded because they make nutritional or health-related claims in violation of federal law. Specifically, FDA takes issue with antioxidant claims used to promote Canada Dry Sparkling Green Tea Ginger Ale® and the cholesterol-lowering claims used to promote Lipton Green Tea 100% Natural Naturally Decaffeinated®. According to FDA, ginger ale, as a carbonated beverage, is a snack food that may not be fortified, and therapeutic claims make green tea a drug requiring the agency’s pre-marketing approval. The letters call for corrective action and a response.
The Food and Drug Administration (FDA) has released a briefing packet in advance of public meetings to discuss a new animal drug application for genetically engineered (GE) salmon. Produced by AquaBounty Technologies, Inc. (ABT), the AquAdvantage salmon contains genes from Chinook and ocean pout that accelerate maturation. Additional details about the September 19-21, 2010, meetings appear in Issue 362 of this Update. According to the FDA briefing packet, “[T]here are no material differences in food from ABT salmon and other Atlantic salmon.” The assessment therefore concludes that “triploid ABT salmon is . . . as safe as food from conventional salmon,” although it recommends further allergenicity studies for diploid salmon because the ones provided were of “low quality.” In addition, an environmental impact statement (EIS) has found that the fish “are not expected to have a significant impact on the quality of the human environment.” As the EIS summary notes,…
