The Ninth Circuit Court of Appeals has determined that pet food mislabeling claims should not be certified as a class action because the named plaintiff failed to satisfy the predominance requirement of Federal Rule of Civil Procedure 23(b)(3). Kennedy v. Natural Balance Pet Foods, Inc., No. 08-56378 (9th Cir., decided January 6, 2010) (not for publication). The plaintiff alleged that dog and cat food products labeled with “Made in the USA” were mislabeled because they contained ingredients from China and sought to certify a class of individuals from a number of states. While the court upheld the district court’s class certification ruling because the plaintiff failed to show which consumer protection law would apply to the class claims, it reversed the court’s order dismissing the action for lack of subject-matter jurisdiction. According to the court, the case, which had been removed from state to federal court, should have been returned…
The U.S. Attorney in Sacramento, California, has announced that a former purchasing manager for Safeway Inc. has agreed to plead guilty to two counts of wire fraud “in connection with an ongoing federal investigation into various illicit activities in the tomato processing industry.” According to the announcement, Michael Chavez has admitted that “while working at Safeway, he received personal bribery payments” from a sales broker and director of SK Foods L.P. to steer contracts for processed tomato products to that company rather than industry competitors. Purchasing managers at other major food companies have also pleaded guilty to receiving illicit payments from the SK Foods broker. U.S. Attorney Benjamin Wagner further noted that the Justice Department’s investigation into SK Foods “has uncovered wide-ranging fraud with respect to the quality of tomato product that was produced, purchased and sold by the company.” Apparently, “SK Foods regularly shipped products which, while not a health…
The National Cattlemen’s Beef Association has filed a challenge to the Environmental Protections Agency’s (EPA’s) finding that manmade greenhouse gas emissions (GHGs) endanger human health and the environment. Filed by a coalition of interested parties in the D.C. Circuit Court of Appeals on December 23, 2009, the petition calls for the court to determine that the agency lacked an adequate basis to make its finding. The finding apparently provides the foundation for EPA to regulate GHGs regardless of action that could be taken by Congress on pending climate change legislation. According to an association press statement, “EPA’s finding is not based on a rigorous scientific analysis; yet it would trigger a cascade of future greenhouse gas regulations with sweeping impacts across the entire U.S. economy,” said Tamara Thies, chief environmental counsel. “Why the Administration decided to move forward on this type of rule when there’s so much uncertainty surrounding humans’ contribution to climate…
The 34-member Executive Board of the World Health Organization (WHO) is scheduled to discuss 12 specific recommendations for protecting children from the marketing of unhealthy food and non-alcoholic beverages at the board’s upcoming 126th session slated for January 18-23, 2010, in Geneva. The proposed mechanisms for promoting “responsible” marketing of such fare are contained in the annex to a recent WHO report focusing on the prevention and control of noncommunicable diseases. According to the report’s annex, “many countries, including those with restrictions in place, are exposed to food marketing in their country from beyond their borders” and the “global nature of many marketing practices needs to be addressed.” Overall, the recommendations strive to provide a comprehensive approach for Member States to draft policies that lessen “the impact on children of marketing of foods high in saturated fats, trans-fatty acids, free sugars, or salt.” More specifically, they champion (i) Member State…
Following a December 16, 2009, National Institute for Occupational Safety and Health (NIOSH) “green” workshop, NIOSH Director John Howard wrote to the head of the Occupational Safety and Health Administration to indicate that “many of the chemicals and materials used as alternatives to diacetyl for imparting butter flavor to flavoring mixtures and food products are not known to be less hazardous.” Additional information about a NIOSH report on diacetyl substitutes appears in Issue 330 of this Update. Howard’s December 23 letter discusses potential diacetyl replacements, including (i) “starter mix,” which apparently contains “high concentrations of diacetyl itself”; (ii) acetoin, which has not been completely investigated, but “accompanies diacetyl in many of the workplaces where bronchiolitis obliterans occurs in workers who make or use flavorings”; and (iii) 2,3-pentanedione, currently being researched by NIOSH, and purportedly associated with “airway epithelial damage similar to that produced by diacetyl.”
The U.S. Department of Agriculture’s Office of Food Safety and the Agricultural Marketing Service have announced a January 13, 2010, public meeting in Washington, D.C., to provide information and receive comments on draft U.S. positions to be discussed at the 9th Session of the Codex Committee on Milk and Milk Products (CCMMP) February 1-5 in Auckland, New Zealand. Agenda items include discussion of the draft amendment to the fermented milks standard, draft standard for processed cheese and purported inconsistencies in food additive provisions. See Federal Register, January 8, 2010.
Representative Rosa DeLauro (D-Conn.) has responded to the recent recall of 248,000 pounds of blade-tenderized steaks by urging the U.S. Department of Agriculture (USDA) “to require labeling that clearly identifies mechanically tenderized beef and pork products for all processing facilities, retailers and consumers.” USDA’s Food Safety and Inspection Service (FSIS) issued the Class I recall after concluding that beef products originating from an Owasso, Oklahoma, establishment might be contaminated with E. coli O157:H7. Working with the Centers for Disease Control and Prevention, FSIS apparently determined “that there is an association between non-intact steaks (blade tenderized prior to further processing) and illnesses in Colorado, Iowa, Kansas, Michigan, South Dakota and Washington.” See FSIS Recall Notice, December 24, 2009. According to DeLauro, however, “USDA has been aware of the E. coli risks associated with mechanically tenderized steaks as early as 1999, but has refused to act.” She has also chided the Obama…
The Environmental Protection Agency (EPA) has announced that it will take a series of actions on four chemicals that purportedly raise serious health or environmental concerns, including phthalates, which are plasticizers used in a wide array of consumer products. The agency will establish a “Chemicals of Concern” list under the Toxic Substances Control Act and intends to place on the list eight phthalates and a number of polybrominated diphenyl ethers (PBDEs), which are used as flame retardants. According to EPA, “[i]nclusion on the list publicly signals EPA’s strong concern about the risks that those chemicals pose and the agency’s intention to manage those risks. Once listed, chemical manufacturers can provide information to the agency if they want to demonstrate that their chemical does not pose an unreasonable risk.” The American Chemistry Council (ACC) reportedly responded by claiming that the first target chemicals “seem to have been selected based on little…
The Center for Science in the Public Interest (CSPI) has prepared a report for the Food and Drug Administration (FDA) that purportedly catalogs “some of the most egregious examples of false claims, ingredient obfuscations, and other labeling shenanigans” on the part of food manufacturers that make nutritional claims about their products. Titled “Food Labeling Chaos,” the report discusses health claims made by manufacturers of breakfast cereals, beverages, snacks, and baby food. CSPI praises FDA for taking more aggressive action under the Obama administration against food manufacturers that purportedly mislabel their products, but still calls for a significant overhaul of the nation’s food labeling regulations.
The Food and Drug Administration (FDA) has entered a memorandum of understanding (MOU) with Boston’s Northeastern University to “develop collaboration between the two parties in the areas of education, research, and outreach.” Focusing broadly on biotechnology and analytical chemistry, the MOU is intended to “provide opportunities for exchanging of graduate and undergraduate students, faculty, and personnel and for advanced training and outreach; stimulate cooperative research, and information exchange in biological product characterization and regulation with Northeastern University’s Barnett Institute of Chemical and Biological Analysis; and develop training programs for FDA and potentially other Government agencies and Industry.” Northeastern University is home to law professor and anti-tobacco activist Richard Daynard who also formed the Public Health Advocacy Institute to address food and obesity issues through legislation and litigation. The law school received a $2.7 million grant from the National Cancer Institute in 2009 to conduct a five-year research project, headed by Daynard,…
