A state court has denied a petition to overturn a New York City ban on the use of expanded polystyrene foam (EPS) containers, finding the city's determination “was a painstakingly studied decision and was in no way rendered arbitrarily or capriciously.” In re Application of Rest. Action All. v. City of New York, No. 100731/2015 (N.Y. Super. Ct., New York Cty., entered June 5, 2018). In 2015, the same court vacated and annulled findings by the city commissioner of sanitation in support of the ban because of “shortfalls” in the findings, remanding the matter for reconsideration. “This time,” the court said, “the Commissioner’s findings are based on reviews of petitioners’ evidence and on [the sanitation department’s] further studies and research.” Among the city’s findings, the court said, were (i) a 30-year history of “failure of subsidized markets of foam recyclers”; (ii) the lack of market for post-consumer recycled foam, particularly soiled…
The U.S. Court of Appeals for the Sixth Circuit has affirmed summary judgment in favor of Peristyle LLC, finding that its use of the term "Old Taylor" falls under the Lanham Act's fair use defense. Sazerac Brands, LLC, v. Peristyle, LLC, No. 17-5933/5997 (6th Cir., entered June 14, 2018). The "Old Taylor" mark references Colonel Edmund H. Taylor, Jr., who built the Old Taylor distillery in 1887, and although production at the facility ceased in 1972, Sazerac Brands owns the trademark rights to "Old Taylor" and "Colonel E.H. Taylor." Peristyle was formed to renovate the medieval castle-style building, listed on the National Register of Historic Places as the "Old Taylor Distillery." Although Peristyle has not resumed bourbon production at the facility, it has used the name "Old Taylor Distillery" in its marketing materials. Noting that a defendant seeking shelter under the fair use defense must show use of the mark…
A federal court in New York has dismissed a putative class action alleging that Storck USA L.P. packaged Werther’s Original Sugar Free Chewy Caramels with nonfunctional slack fill and misrepresented the candy's effect on blood glucose levels. Kpakpoe-Awel v. Storck USA L.P., No. 18-1086 (S.D.N.Y., entered June 8, 2018). According to court filings, the parties have entered into a confidential settlement agreement.
The U.S. Food and Drug Administration has released guidance identifying eight non-digestible carbohydrates that the agency intends to add to its list of dietary fibers—including mixed plant cell wall fibers, alginate, polydextrose and resistant maltodextrin/dextrin—because the agency has "tentatively determined that they have physiological effects that are beneficial to human health." These additions "provide industry with additional clarity to update their product labels and accurately declare dietary fiber content on the Nutrition Facts and Supplement Facts labels for consumers," according to a constituent update.
The American Grassfed Association and the Organization for Competitive Markets (OCM) have filed a petition urging the U.S. Department of Agriculture (USDA) to change its policy allowing meat produced outside of the United States to be labeled as a product of the country if it passes through an agency-inspected plant. The groups call for a change to USDA's Food Safety and Inspection Service Policy Book, which allows a label to bear "Product of U.S.A." if the food is "processed" within the United States. They argue that the section should be clarified to instruct that a label can bear the phrase if "it can be determined that significant ingredients having a bearing on consumer preference such as meat, vegetables, fruits, dairy products, etc., are of domestic origin (minor ingredients such as spices and flavorings are not included). In this case, the labels should be approved with the understanding that such ingredients…
Hawaii Governor David Ige has signed a bill that will ban the use of chlorpyrifos in the state beginning January 1, 2019. The law allows users of the pesticide to apply for a temporary permit allowing its use until December 31, 2022, and prohibits the use of pesticides near schools during normal school hours. The bill was passed in May 2018 by a unanimous Hawaii legislature.
The Associated Press has published an investigation into Sea To Table, a seafood distributor that reportedly misled its clients—including universities, meal-kit companies and high-profile chefs—about the source of its fish. The company promised to inform customers about the location of the fishing boats that caught its products, but AP reporters purportedly found evidence that the company lied, including video footage showing a consistently empty Montauk harbor during a week when the company sold the reporters tuna from a boat that supposedly docked there. Moreover, the owner of the boat listed on the order apparently told the reporters his boat was in a different state at the time. The reporters also sent the purchased fish to a lab for testing, which purportedly found that the fish "likely came from the Indian Ocean or the Western Central Pacific," although the article acknowledges the limitations of such testing.
California Attorney General Xavier Becerra has filed a lawsuit alleging two companies' toddler formula products contain lead levels higher than U.S. Food and Drug Administration (FDA) standards. California v. Nutraceutical Corp., No. RG18907841 (Cal. Super. Ct., Alameda Cty., filed June 7, 2018). The state alleges that Sammy’s Milk Free-Range Goat Milk Toddler Formula, manufactured and sold by Graceleigh Inc., and Peaceful Planet Toddler Supreme Formula, manufactured and sold by Nutraceutical Corp., contain more than six micrograms of lead—the daily intake limit set by FDA—and fail to include lead warnings on the products' labels. Both companies purportedly market their products as "clean" and "pure." “Toddler formula should contain nutrients that help children grow, not poisonous substances that can threaten their healthy development. No parent should have to worry that the formula they purchase could endanger their child,” said Becerra in a press release. “The levels of lead we found in these formulas…
A Washington federal court has granted summary judgment to the U.S. Department of Agriculture (USDA) in a lawsuit filed by ranchers and cattle producers challenging the agency's regulations governing the removal of country-of-origin labeling (COOL) for beef and pork. Ranchers-Cattlemen Action Legal Fund v. USDA, No. 17-0223 (entered June 5, 2018). The complaint alleged that the 2016 COOL Requirement Removal Rule conflicted with the Tariff Act of 1930, which stated that “every article of foreign origin . . . imported into the United States shall be marked . . . in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article.” The court found that the relevant provisions in the 2016 rule were enacted to comply with World Trade Organization (WTO) decisions finding that the COOL requirements of the Agricultural Marketing Act discriminated against imported meat. The court…
Brinker International Inc. faces a putative class action alleging hackers stole customers' personally identifiable information (PII) from point-of-sale systems at Chili's Grill & Bar in April and May 2018. Steinmetz v. Brinker Int'l, Inc, No. 18-0981 (D. Nev., filed May 30, 2018). The plaintiff seeks damages, an injunction and attorney's fees for negligence and alleged violations of the Fair Credit Reporting Act and Nevada consumer-protection law. Wendy’s International LLC has agreed to settle a lawsuit alleging that a similar point-of-sale breach exposed customers’ PII at more than 1,000 locations nationwide. Jackson v. Wendy's Int'l LLC, No. 16-0210 (M.D. Fla., entered May 25. 2018). The lawsuit was previously dismissed, then an amended complaint proceeded. Terms of the settlement were not disclosed. An Illinois federal court dismissed a putative class action without prejudice after the plaintiffs voluntarily dismissed claims related to a data breach of Panera Bread Co.’s customer records because none…
