The Fifth Circuit Court of Appeals has decided to rehear a case involving the interpretation of the Packers and Stockyards Act as applied to contracts between chicken growers and a processor. Wheeler v. Pilgrim’s Pride Corp., No. 07-40651 (5th Cir., decided July 27, 2009). In 2008, a three-judge circuit panel decided that the law does not require proof of an adverse effect on competition, creating a split with other circuit courts that had considered the question. The issue arose when chicken growers complained that the processor for whom they raised chickens gave preferential treatment and thus greater compensation to one grower. According to the earlier opinion, the other circuit courts have mistakenly looked to legislative history and policy issues to interpret the law, which the Fifth Circuit panel believed was clear and unambiguous. The case will be considered by the entire Fifth Circuit court on rehearing.
A federal court in California has denied the motion to dismiss filed by Ocean Spray Cranberries, Inc. in litigation filed by Pom Wonderful LLC alleging that the company’s false advertising for a cranberry-pomegranate juice violates federal and state law and constitutes unfair competition. Pom Wonderful LLC v. Ocean Spray Cranberries, Inc., No. 09-00565 (C.D. Cal., decided July 16, 2009). Pom Wonderful alleges that Ocean Spray’s product contains little pomegranate juice, costs less to produce and thus unfairly competes with its own and other competitors’ pomegranate juices. The complaint also contends that marketing the Ocean Spray product as high in antioxidants misrepresents the product because “in fact the Beverage does not contain high levels of antioxidants.” The court rejected Ocean Spray’s assertions that (i) the false advertising claims brought under the Lanham Act are precluded or barred by the Federal Food, Drug, and Cosmetic Act and Food and Drug Administration (FDA) regulations;…
A federal court in California has denied the request for class certification filed by plaintiffs who allege that Van’s International Foods falsely advertised its frozen waffle products by listing incorrect nutritional information in their labels. Hodes v. Van’s Int’l Foods, No. 09-1530 (C.D. Cal, decided July 23, 2009). While the court found that the claims met the numerosity, commonality, typicality, and adequacy of representation requirements of Rule 23(a) of the Federal Rules of Civil Procedure, it found that the named plaintiffs failed to satisfy Rule 23(b)(3). According to the court, common questions of law and fact do not predominate over individualized issues, and the class action device is not superior to other methods for adjudicating the controversy. The named plaintiffs had sought to certify a nationwide class of consumers, and the court was concerned about the manageability of the class action, stating, “the Court has concerns about how Plaintiffs will identify each…
A federal court in the District of Columbia has dismissed claims that the National Animal Identification System (NAIS) violates a number of federal and state laws, including a religious freedom statute and constitutional protections. Farm-to-Consumer Legal Defense Fund v. Vilsack, No. 08-1546 (D.D.C., decided July 23, 2009). Dubbed in the press as the “mark of the beast” lawsuit, the complaint, brought by farmers “who raise livestock in a sustainable manner,” contends that the U.S. Department of Agriculture (USDA) coerced Michigan’s Department of Agriculture to adopt uniform NAIS requirements that threaten their way of life by gathering information into a national database against their wills and in violation of their religious beliefs. Among the complainants are Amish farmers who apparently believe (i) they have been given dominion and control over animals, and that control has now been given to state and federal agencies; (ii) they are not permitted to take the NAIS…
The Nanotechnology Standards Panel of the American National Standards Institute (ANSI) will meet September 9, 2009, in Chicago. The meeting will be held during the Nanobusiness Alliance Conference. The panel has been working to develop nanotechnology-related standards involving nomenclature/terminology; materials properties; and testing, measurement and characterization procedures. ANSI’s efforts are in support of international nanotechnology standards initiatives and could result in federal regulation. Nanomaterials are used in hundreds of products including food packaging.
The Food and Drug Administration’s (FDA’s) Science Board has scheduled an August 17, 2009, public meeting to review the agency’s continuing assessment of the packaging chemical bisphenol A (BPA) in FDA-regulated products and discuss plans to increase research reviews at the Center for Food Safety and Applied Nutrition (CSFAN). See Federal Register, July 28, 2009.
The Centers for Disease Control and Prevention (CDC) hosted a “Weight of the Nation” conference July 27-29, 2009, in Washington, D.C., to explore ways of tackling the nation’s escalating rates of obesity. Treating obesity-related conditions such as diabetes, heart disease and arthritis reportedly costs some $147 billion annually. Speakers at the inaugural event included CDC Director Thomas Frieden, who was quoted as saying that taxing sugary drinks at $.01 per ounce could produce $100 billion to $200 billion over the next decade. “Anything that decreases the availability and increases the cost is likely to be effective. The challenge, I think, is a political one of getting that approved,” he said. Frieden further asserted that average American adults are 23 pounds overweight, consume 250 more calories daily than 10 years ago and that about 120 of those calories are from sugary beverages. In a related development, CDC issued a report on…
By a 283-142 vote, the U.S. House of Representatives has passed the “Food Safety Enhancement Act of 2009” (H.R. 2749). The day before its passage, the measure failed to garner the two-thirds majority vote needed to approve legislation submitted under “suspension of the rules,” which would not have allowed any floor amendments. The second submission, on July 30, 2009, needed only a simple majority vote, which was handily achieved. According to news sources, farm-state lawmakers were able to insert several last-minute changes that would exempt some growers from the new farming standards and restrict recordkeeping requirements for livestock farmers. The pork industry apparently kept some proposed restrictions on antibiotic use out of the final bill. Heralded by some as an historic moment for food safety, the bill would provide for more frequent inspections of processing plants and would give the Food and Drug Administration (FDA) the authority to order the…
“Whether anything will be done – or even can be done – to stem the global tide of obesity is, at this point, an open question,” writes New Yorker columnist Elizabeth Kolbert in her review of several “weight-gain books” that examine the causes and course of this recent phenomenon. The theories under consideration include those put forth in the following publications: (i) The Evolution of Obesity (Michael Power and Jay Schulkin), (ii) The Fattening of America (Eric Finkelstein and Laurie Zuckerman); (iii) The End of Overeating (David Kessler); (iv) Fat Land (Greg Critser); (v) Mindless Eating (Brian Wansink); (vi) The Fat Studies Reader (New York University); and (vii) Globesity (Francis Delpeuch, Benard Maire, Emmanuel Monnier, and Michelle Holdsworth). According to the article, these books each offer a unique perspective on the obesity “epidemic,” chalking up the increasing waistline to a variety of factors as divergent as evolution, corporate manipulation, cheaper calories,…
The Cancer Project, a vegan advocacy group affiliated with the Physicians Committee for Responsible Medicine (PCRM), has reportedly filed a putative consumer fraud class action on behalf of three New Jersey residents that seeks to require cancer-risk labels on hot dogs and other processed meats. Filed July 22, 2009, in New Jersey Superior Court, the complaint names as defendants the parent companies of several hot dog manufacturers, including Kraft Foods Inc., Sara Lee Corp. and Nathan’s Famous Inc. The suit seeks damages for the named plaintiffs and declaratory relief under the Consumer Fraud Act for the proposed class. The Cancer Project has contended that processed meats contain human carcinogens like nitrites and N-nitrosodimethylamine (NDMA), basing its claim on a recent meta-analysis by the American Institute for Cancer Research that purportedly associates the daily consumption of processed meat with an increased risk of colorectal cancer. “Just as tobacco causes lung cancer,…
