A putative class action has been filed in a Washington state court by plaintiffs claiming that L’il Critters Omega-3 Gummy Fish® are deceptively marketed as products that will “Promote Healthy Brain Function” in children. Aust v. NW Natural Prods., Inc., No. 10-07949 (Wash. Super. Ct., King Cty., filed February 23, 2010). In fall 2009, the Federal Trade Commission (FTC) warned the defendant that its claims may violate federal false advertising laws, and the company modified its marketing materials. Additional information about the FTC’s actions on products with omega-3 related claims appears in issue 338 of this Update. Seeking to represent a class of all Washington residents who have purchased the company’s omega-3 gummy fish products, the plaintiffs allege violations of Washington’s consumer protection act, breach of warranties, conversion and unjust enrichment. They seek a class certification order, a declaration that the company’s conduct was unlawful, actual damages, statutory damages including treble…
Three advocacy organizations have sued Department of the Interior Secretary Ken Salazar and the U.S. Fish & Wildlife Service (FWS), charging them with violations of the National Environmental Policy Act (NEPA) for failing to prepare an environmental impact statement (EIS) before entering into contracts that allow farmers to cultivate genetically engineered (GE) crops at the Bombay Hook refuge in Delaware. Delaware Audubon Soc’y v. Salazar, No. 99-9999 (D. Del., filed March 1, 2010). The refuge reportedly spans 16,000 acres of mainly tidal marshes that provide habitat for many waterfowl species that attract birdwatchers. Claiming that GE crops harm the environment by increasing the use of herbicides with adverse effects on soil, water, amphibians, and birds, and with the development of “superweeds” resistant to certain herbicide ingredients, the plaintiffs allege that defendants have repeatedly ignored legal obligations under NEPA to provide an environmental assessment or an EIS. The refuge has leased some…
A federal court in Kentucky has determined as a matter of law that a company which tested, developed and approved paper packaging for customers buying KFC Popcorn chicken breached its contract because the containers caught fire while being microwaved. KFC U.S. Props., Inc. v. Paris Packaging, Inc., No. 09-00249 (W.D. Ky., decided February 25, 2010). So ruling, the court granted KFC’s motion for partial summary judgment. Additional details about the lawsuit appear in issue 299 of this Update. According to the court, the parties’ contract specified that the packaging company would be responsible for ensuring the product was safe regardless of any standards, specifications or other information KFC provided. Because it was reasonably foreseeable that customers would microwave their KFC chicken in the paper box in which they took it home, the court held that the defendant breached its contract by providing unsafe packaging that was unfit for its intended…
Food Standards Australia and New Zealand (FSANZ) has lifted a nine-year ban on imported beef and beef products, implementing a new policy that requires export countries to undergo a risk assessment for bovine spongiform encephalopathy (BSE). According to FSANZ, “certain beef and beef products may be imported from countries that apply and are assessed by Australian authorities as being able to demonstrate they have in place, and appropriately monitor, controls necessary to ensure that beef and beef products exported to Australia are derived from animals free of BSE.” Australian regulators will also conduct in-country inspections when warranted. The policy uses the BSE risk assessment methodology developed by the World Organization for Animal Health to determine the BSE risk status of a cattle population and to assess whether the beef and beef products from a country represent a health risk. These restrictions currently cover meat, bone and offal from cattle, bison…
The European Commission (EC) has reportedly approved for the first time in 12 years a genetically modified (GM) crop to be grown solely for industrial or animal feed purposes in the European Union. EU Commissioner for Health and Consumer Policy John Dalli told reporters that the GM Amflora potato produced by the German company BASF could be planted in Europe as soon as April 2010. The potato is purportedly engineered to be unusually rich in a starch suitable for making glossy paper and other products as well as for feeding animals. Some EU member states, however, reportedly oppose the certification, claiming that the biotech potato could pose health risks to humans if its antibiotic-resistant gene enters the food chain when livestock is fed its industrial pulp or harm the environment if its seeds accidentally spread. “Not only are we against this decision, but we want to underscore that we will not…
Wisconsin Governor Jim Doyle (D) has signed a bill (S.B. 271) that bans bisphenol A (BPA) in baby bottles and sippy cups for children younger than age 3, joining Minnesota and Connecticut in prohibiting this use of a packaging chemical purportedly linked to developmental problems in young children. The Wisconsin bill, effective June 2010, prohibits the manufacture and sale at wholesale of baby bottles and sippy cups with BPA and requires such bottles and cups to be labeled free of BPA. Massachusetts, Missouri, New Jersey, New Mexico, New York, Pennsylvania, Vermont, Washington, and Washington, D.C., are also considering BPA legislation. Meanwhile, the Maryland Senate recently approved a similar bill (S.B. 213), which Governor Martin O’Malley (D) is reportedly expected to sign this spring. The bill, which would take effect in January 2012, would apply to “an empty bottle or cup to be filled with food or liquid that is designed…
FDA Commissioner Margaret Hamburg offered her views on how the agency will move forward on food safety and labeling issues during a “Food Summit” sponsored by The Atlantic magazine at the Newseum in Washington, D.C., March 4, 2010. Hamburg stated that she plans to focus on two critical aspects of food policy: safety and how to make it easier for consumers to make more nutritious choices and reduce the risk of disease. She pointed to three converging factors that affect food safety. First, she stated that both consumers and the industry support reform measures and want a system focused on prevention, where everyone in the supply chain is held accountable and imports are required to meet U.S. standards. Second, she noted that current U.S. food safety legislation (H.R. 2749—passed by the House in July 2009 and expected to be taken up by the Senate this spring) would mandate a shift from reaction…
With the recent uptick in consumer fraud class actions targeting food and beverage labels, and opinions like the Ninth Circuit’s in Williams v. Gerber, 552 F.3d 934 (2009) (reinstating a proposed class action and finding that consumers should not be “expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box”), the findings of a recent Food and Drug Administration health and diet survey are good news to manufacturers of food and beverage products. On March 2, 2010, FDA released the results of a nationwide survey conducted in 2008 on consumer behaviors, knowledge, attitudes, and beliefs about health and diet. Specifically included were questions about consumer use of packaging labels. Fifty-four percent of consumers “often” read the food label the first time they buy a product. Of these, two-thirds do so to…
Taking aim at companies that make (i) nutrient content claims on foods and beverages intended for children younger than age 2, (ii) 0 gram trans fat claims on products high in saturated fats, and (iii) health-related claims, such as the treatment or mitigation of disease, the Food and Drug Administration (FDA) has issued warning letters to 17 companies and an open letter to industry indicating that it will crack down on false or misleading labeling and marketing claims. Among the targeted companies are Dreyer’s Ice Cream, Inc. (ice cream—no trans fat), Beech-Nut Nutrition Corp. (baby food—nutrient claims for children younger than age 2), Nestle (Juicy Juice products—implied 100 percent juice for juice blends with added flavors), Pompeian, Inc. (olive oil—treat, prevent and cure diseases), Redco Foods (green tea—antioxidants effective in the prevention of cardiovascular disease), and Diamond Food, Inc. (shelled walnuts—omega-3 claims about treating, preventing or curing diseases). Some of the…
Senator Charles Schumer (D-N.Y.), who introduced legislation that would prohibit the use of bisphenol A (BPA) in children’s products, has written to the U.S. Environmental Protection Agency’s (EPA’s) administrator seeking an explanation for the agency’s decision to omit BPA from its December 2009 chemical action plan. In the March 2, 2010, letter, Schumer refers to scientific research purportedly identifying BPA risks “particularly to infants and children,” and the Food and Drug Administration’s recent decision to reverse its conclusion that the chemical is safe for all uses. Schumer also refers to a Milwaukee Journal-Sentinel article reporting that “the agency does not plan to formulate any new plan for regulating BPA for two years. If this is true, it is alarming. At a time when we should be speeding up steps to limit Americans’ exposure to this potentially hazardous chemical, such a decision would apply the brakes.” That article apparently took note of…
