A federal court in Pennsylvania has certified for immediate appeal its denial of the defendants’ motion to dismiss in multidistrict litigation (MDL) alleging price-fixing by chocolate manufacturers. In re Chocolate Confectionary Antitrust Litig., MDL No. 1935 (M.D. Pa., April 8, 2009). The defendants in these 87 consolidated lawsuits reportedly supply 75 percent of the chocolate candy consumed by Americans each year. The lawsuits allege that the companies conspired to raise prices in 2002, 2004 and 2007 by as much as 10 percent and rely on information generated by government investigations in the United States and Canada to bolster their conspiracy allegations. At least one company spokesperson has been quoted as saying, “You can’t just infer the existence of a price-fixing conspiracy from the fact that independent competitors in concentrated industries independently choose to raise their prices.” The question certified to the Third Circuit Court of Appeals is whether the U.S.…
According to a news source, Health Canada is about to become the first country to formally place bisphenol A (BPA) on its toxic substances list and prohibit its use in baby bottles. An official announcement in the Canada Gazette is reportedly imminent, although nothing on the government agency’s website confirms this report. Health Minister Tony Clement said in 2008 that the government planned to take such action, calling the move “precautionary and prudent.” See Canada.com, April 14, 2009. Meanwhile, a legislative committee in Connecticut has apparently approved a bill (Raised Bill No. 6572) that would prohibit BPA’s use in products for children younger than age 3, such as baby bottles, infant formula cans and spill-proof cups, as well as in reusable food or beverage containers, beginning in October 2009. Jars, cans, bottles, or other food product containers could not contain BPA after October 2012. While the proposal still faces approval…
The United Nations’ Food and Agriculture Organization (FAO) and World Health Organization (WHO) has announced a joint expert meeting titled Application of Nanotechnologies in the Food and Agriculture Sectors: Potential Food Safety Implications, to be held June 1-5, 2009, in Rome, Italy. The gathering will reportedly address the potential food safety risks that may arise from nanoparticles, particularly in the areas of (i) nanotechnology applications in plant and animal food production; and (ii) nanotechnology applications in food processing, packaging and distribution.
The Federal Trade Commission (FTC) has apparently proposed amending its advertising guidelines to hold companies and paid word-of-mouth marketers, including bloggers and those on social networking sites, liable for making false statements to promote products. According to an FTC spokesperson, the proposal would bring the commission up to speed with evolving marketing practices. “The commission is attempting to update guidelines that are 30 years old so that they address current marketing techniques and in particular to address the issue of whether or not the safe harbor that’s currently allowed for ‘result not typical’-type disclaimers is still warranted,” he was quoted as saying. Meanwhile, a public comment submitted by the American Association of Advertising Agencies has reportedly urged FTC to reconsider “overly stringent amendments that will likely result in advertisers abandoning longstanding legitimate advertising techniques, such as consumer testimonials, and rejecting new media forms, such as blogs and viral marketing.” The…
The D.C. Circuit Court of Appeals has determined that the owners of a dairy are not required to first exhaust administrative remedies before bringing a constitutional challenge to Agricultural Marketing Agreement Act amendments. Hettinga v. U.S., No. 07-5403 (D.C. Cir., decided April 3, 2009). The amendments codified certain rule changes that the Secretary of Agriculture made to a program that regulates payments from milk handlers (processors and distributors) to milk producers (farmers) and is intended to protect producers from price fluctuations. The plaintiffs sought an injunction against enforcement of the secretary’s rule, and, while that proceeding was pending before a federal court in Texas, Congress amended the law. The plaintiffs then filed a complaint in a D.C. district court alleging that “the Amendments are unconstitutional as a bill of attainder and a denial of due process and equal protection because only the Hettingas are subject to them.” The district court…
The Office of the Acting Deputy Undersecretary for Food Safety, U.S. Department of Agriculture and U.S. Food and Drug Administration have announced a public meeting on April 29, 2009, to discuss draft U.S. positions for the 18th Session of the Codex Committee on Residues of Veterinary Drugs in Foods (CCRVDF) slated for May 11-15, 2009, in Natal, Brazil. CCRVDF works to (i) establish “priorities for the consideration of residues of veterinary drugs in foods”; (ii) “recommend maximum levels of such substances”; (iii) “develop codes of practice as may be required”; and (iv) consider methods of sampling and analysis for the determination of veterinary drug residues in foods.” The session will include agenda items related to (i) the “registration of veterinary medicinal products”; (ii) “draft guidelines for the design and implementation of national regulatory food safety assurance programs”; and (iii) a “draft priority list of veterinary drugs requiring evaluation or reevaluation.”…
California’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the deadline for public comment on its notice of intent to list 4- methylimidazole (4-MEI) as a chemical known to the state to cause cancer under Proposition 65 (Prop. 65). The new deadline is May 29, 2009. According to a news source, the proposed intent to list has generated significant opposition from grocers and other food industry representatives who argue that the chemical, which is found in foods such as wine, soy sauce and Worcestershire sauce after cooking, “is just the latest in a series of near-ubiquitous chemicals created as an unavoidable consequence of heating the natural constituents of foods.” Once a chemical is listed under Prop. 65, products containing the chemical cannot be sold without warnings. The industry groups reportedly contend, “listing 4-MEI can be expected to impact a wide swath of foods by producing warnings, changes in cooking methods,…
The U.S. Department of Agriculture (USDA) and the Department of Health and Human Services (HHS) have announced the third meeting of the Dietary Guidelines Advisory Committee charged with revising the Dietary Guidelines for Americans 2005. Slated for April 29 and 30, 2009, the online meeting will include (i) presentations on topics such as “eating environment, economics, nutrient adequacy, and effects of various macronutrient meal plans on weight status”; (ii) progress updates from individual subcommittees; and (iii) plans for future work of the committee. Written comments pertinent to this meeting must be received by 5 p.m. on April 23, although comments will be accepted throughout the committee’s deliberation process. See Federal Register, April 14, 2009.
The U.S. Department of Agriculture’s (USDA) Animal Plant Health Inspection Service has announced a public meeting on April 29 and 30, 2009, in Riverdale, Maryland, to address a proposed rule involving the interstate movement and environmental release of certain genetically engineered (GE) organisms. The comment period on the proposed rule has been extended to June 29, 2009. See Federal Register, April 13, 2009.
Federal Trade Commission (FTC) Chair Jon Leibowitz has reportedly named David Vladeck as director of the commission’s Bureau of Consumer Protection. Vladeck, who leaves the Georgetown University Law Center faculty, is apparently a 30-year veteran of the Public Citizen Litigation Group and, as such, is expected to pursue a consumer-protection agenda. Representatives of other public advocacy organizations are applauding the selection and have expressed their hope that “he will pay special attention to advertising and marketing to children.” Vladeck co-authored a law review article with former Food and Drug Administration Commissioner David Kessler to criticize the preamble to the FDA’s 2006 prescription drug labeling rule, which set forth a pro-preemption policy. In the article, titled “A Critical Examination of the FDA’s Efforts to Preempt Failure-to-Warn Claims,” the authors conclude, “it would be a mistake to preempt state-law failure-to-warn cases, which impose a complementary discipline on the marketplace.” See Advertising Age and…
