The Physicians Committee for Responsible Medicine has filed an Administrative Procedure Act lawsuit seeking to compel the U.S. Department of Agriculture (USDA) to respond to the organization's petition urging the agency to regulate feces as an adulterant under the Federal Meat Inspection Act and the Poultry Products Inspection Act. Physicians Comm. for Responsible Med. v. USDA, No. 19-1069 (D.D.C., filed April 16, 2019). Physicians Committee's 2013 petition "asserted that meat and chicken that is contaminated with feces regularly passes USDA inspection," according to the complaint. "The risk of fecal contamination has increased in the six years since the Physicians Committee petitioned USDA," the organization argues. Under the system implemented in 2014, one USDA inspector is assigned to a slaughter line, apparently correlating with higher failure rates for Salmonella—"a bacteria found in feces"—during inspections. "Despite the passage of six years, USDA has not shared its determinations regarding the actions requested by…
A D.C. court has granted summary judgment in favor of Hormel Foods Corp. in a lawsuit alleging that the company misleads consumers into believing that its products "are from animals that are humanely raised and not 'factory-farmed' and that its products do not contain preservatives or nitrites that are not from natural sources." Animal Legal Defense Fund v. Hormel Foods Corp., No. 2016 CA 004744 (D.C. Super. Ct., entered April 8, 2019). The court held that the Animal Legal Defense Fund's (ALDF's) claims were preempted, finding that applying the Washington, D.C., consumer-protection statute "to prohibit the use of terms that [the U.S. Department of Agriculture (USDA)] approved would stand as an obstacle to the accomplishment of Congress' purposes for consistent regulation of labeling meat and poultry products." "Federal law regulates labeling so that consumers can use labels as the authoritative source of information about a product's ingredients, and if a…
A consumer has filed a putative class action alleging that O Organics and Lucerne Foods Inc. "greatly understate" the alcohol and sugar content of their kombucha. Freedline v. O Organics LLC, No. 19-1945 (N.D. Cal., filed April 10, 2019). The plaintiff argues that "the beverages contain more than three to five times the alcohol allowed for non-alcoholic beverages" and "are sold to unsuspecting children, pregnant women, persons suffering with alcohol dependence issues, and a host of other people for whom alcohol consumption may pose a grave and immediate safety risk." The complaint cites lab testing purportedly showing levels of alcohol by volume between 1.63 and 2.63 percent. The plaintiff alleges violations of California's consumer-protection statutes as well as breach of warranties, fraud, unjust enrichment and negligent misrepresentation, and he seeks class certification, damages, restitution and attorney's fees.
The U.S. Food and Drug Administration has announced that inspections for compliance with a rule aiming to mitigate the risk of intentional adulteration (IA) will begin in March 2020. The rule, which "is designed to address hazards that may be intentionally introduced to foods, including by acts of terrorism, with the intent to cause wide-spread harm to public health," requires "the food industry to implement risk-reducing strategies for processes in food facilities that are significantly vulnerable to intentional adulteration." "To allow industry time with the forthcoming materials, tools, and trainings, and because the IA rule represents new regulatory territory for all of us, we will be starting routine IA rule inspections in March 2020," the agency announced.
The U.S. Department of Agriculture will accept comments on proposed changes to the National Poultry Improvement Plan (NPIP) Program Standards until May 13, 2019. Changes include an amended testing protocol for Mycoplasma, amended Salmonella isolation procedures and updated cleaning and disinfecting procedures.
A study published in a BMJ journal has purportedly found that foods marketed to children in the United Kingdom frequently contain health and nutrition claims that mislead consumers into believing that the products are healthful. Garcia et al., "Confused health and nutrition claims in food marketing to children could adversely affect food choice and increase risk of obesity," Archives of Disease in Childhood, April 4, 2019. The researchers categorized marketing claims on 332 products and reportedly found that some claims were unsubstantiated, including 75 percent of "one of 5-a-day" fruit or vegetable content claims. The researchers concluded that uniform guidance would help consumers navigate the nutritional quality of food products.
Quartz has reported on a Michigan State University study purportedly finding that tert-butylhydroquinone (TBHQ), which can help preserve unsaturated vegetable oils and animal fats, may cause a higher susceptibility to influenza. Researchers apparently found that TBHQ caused the T cells of lab mice to become more sluggish and thus unable to fight off the flu virus as effectively. "The researchers’ leading hypothesis is that TBHQ causes these effects by triggering some of the proteins in the body that are known to suppress the immune system," Quartz reports. "The emerging scientific work so far only applies to laboratory mice, which is to say it still has a long way to go before we’ll know whether humans are impacted in a similar way. Still, if the science bears out, it could wind up impacting how food companies operate, and it could give health experts new insight into how people are made more…
Two consumers have filed a putative class action alleging that Beverage Marketing USA Inc. markets its AriZona iced green tea products as containing “ginseng for energy” despite lacking “any detectible amounts of ginseng, if indeed it contains any ginseng at all.” Niles v. Beverage Marketing USA Inc., No. 19-1902 (E.D.N.Y., filed April 2, 2019). The complaint asserts that ginseng demand “has skyrocketed while supply has dwindled, causing prices to surge to above $1,000 per pound. Ginseng is so coveted in the marketplace that certain species of ginseng have been harvested to the edge of extinction.” The plaintiffs allege that they “retained two respected food laboratories to conduct three tests of the Product for ginsenosides,” “the main chemical constituent of ginseng,” and apparently found that “none of the three tests were able to detect any amount of ginsenosides in the Product.” Additional tests allegedly showed that AriZona’s competitors’ products did contain…
JD Supra 2019 Readers’ Choice Awards selected Shook, Hardy & Bacon as the “Top Firm for Food & Beverage” news. Shook was chosen from a crowded field of more than 50,000 authors whose work was published on the site in 2018. Shook was recognized for the second consecutive year for insights and commentary in the Food and Beverage Litigation Update, achieving the “highest visibility and engagement for their particular expertise” in the practice area. The legal news site’s readers chose ten top authors and one top firm in each of 26 categories. Shook Partner Mark Anstoetter was ranked first among the “Top Authors” in Food & Beverage. According to JD Supra, honorees were selected for their coverage of “topics at the intersection of food, beverages and the law,” including U.S. Food and Drug Administration labeling, risk mitigation, trademark protection and export issues. Anstoetter was also noted in a subsequent article,…
The meat industry is moving towards self-regulation for identifying diseased animals, an article in The Washington Post asserts. The article documents a series of changes shifting responsibility for identifying contamination in meat production, especially pork and poultry, from the U.S. Department of Agriculture (USDA) to employees of the regulated production plants. The Post spoke to a former hog inspector who worked under the trial program for testing the proposed system. “I saw the alleged inspections that were performed by plant workers; they weren’t inspections. They were supposed to meet or exceed USDA standards — I never saw that happen,” the Post quotes him as saying. USDA also states that plants participating in the trial program had fewer worker injuries, but Texas State University researchers reportedly found it “impossible” for the agency “to draw any statistically valid conclusion about worker injury rate differences” based on data the researchers obtained through a…
