Sanderson Farms Inc. lost a motion to dismiss false advertising claims brought by three advocacy organizations when a California federal court ruled that the claims are not preempted by either the Poultry Products Inspection Act (PPIA) or the Federal Meat Inspection Act (FMIA). Organic Consumers Ass’n v. Sanderson Farms Inc., No. 17-3592 (N.D. Cal., entered February 9, 2018). The groups alleged that Sanderson’s marketing materials—which asserted that the poultry was “100% Natural” with “no hidden ingredients” and that “100% natural means there’s only chicken in our chicken”—were misleading because of U.S. Department of Agriculture testing reportedly showing the presence of antibiotics, ketamine, pesticides and “other unnatural substance residues.” The court found that consumer-protection laws “are within the historic police powers resting with the states and are therefore subject to the presumption against preemption ... Consequently, they cannot be superseded by federal law or action unless it is the ‘clear and…
The U.S. Food and Drug Administration (FDA) has released the 2017 edition of the FDA Food Code, a set of model regulations and advice for the reduction of foodborne illnesses, including suggested uniform standards for retail food safety, inspections and audits. The Code includes (i) a requirement for a person in charge of the establishment to be a “Certified Food Protection Manager”; (ii) an added section regarding the use of bandages, finger cots and stalls; (iii) standardized cooking times and temperatures for “intact and non-intact” meat and poultry; and (iv) updated procedures for operation during extended water or electrical outages.
Shook, Hardy & Bacon Partners Jim Muehlberger and Lindsey Heinz, along with Associate Naoki Kaneko, will present at the Grocery Manufacturers Association (GMA) 2018 Legal Conference February 27-28, 2018, in New Orleans, Louisiana. Heinz will join a “Roundtable Discussion on Legal Issues for Organic Products," which will center on the continual market growth of organics, encompassing food, beverage, personal care and household products. The session will provide a comprehensive review of legal issues surrounding organic products. Muehlberger and Kaneko are presenting “Trends in Consumer Goods Class Action Litigation,” a breakout session that will broadly examine the types of claims the plaintiff’s bar has filed across the consumer goods industry to help companies better anticipate litigation risks.
A study from the Department of Epidemiology at Boston University’s School of Public Health has concluded that consumption of sugar-sweetened beverages (SSBs) may reduce fertility in both males and females. Elizabeth E. Hatch, et al., “Intake of Sugar-sweetened Beverages and Fecundability in a North American Preconception Cohort,” Epidemiology. Researchers studied 3,828 women and 1,045 of their male partners for up to 12 menstrual cycles in the four-year study. Women who drank at least one SSB per day reportedly had a 25 percent lower monthly probability of conception, while men who drank at least one SSB per day reportedly showed a 33 percent lower probability of successful conception. The study did not purport to find an association between lowered fertility and the consumption of diet sodas or fruit juices.
In a JAMA Viewpoint article, researchers from Stanford University have argued that nutrition studies should be transparent about their authors' financial and non-financial conflicts of interest, including their dietary preferences and activism work. Noting that "the puritanical view that accepting funding from the food industry ipso facto automatically biases the results is outdated," the authors briefly call for a financial disclosure registry before shifting to focus on non-financial conflicts of interest. "Advocacy and activism have become larger aspects of the work done by many nutrition researchers, and also should be viewed as conflicts of interest that need to be disclosed," they assert. "Therefore, it is important for nutrition researchers to disclose their advocacy or activist work as well as their dietary preferences if any are relevant to what is presented and discussed in their articles," the researchers argue. "This is even more important for dietary preferences that are specific, circumscribed, and…
A federal court in California has again denied class certification in a lawsuit alleging that Gerber Products Inc. misbranded baby food, finding that the plaintiff is not entitled to injunctive relief and that the proposed damages models will not provide the correct measure of restitution. Bruton v. Gerber Prods. Co., No. 12-2412 (N.D. Cal., entered February 13, 2018). The complaint alleged that certain “Nature Select” and “Organic” lines of Gerber baby foods made unlawful and deceptive nutrient claims and that the labels did not contain federally required warnings of the high calorie content of the products. After initial rulings on summary judgment were appealed to the Ninth Circuit, the remaining allegations included a claim that the labels violated California’s Unfair Competition Law (UCL) and a claim for unjust enrichment. The court found that although the plaintiff had standing under the UCL, a class seeking injunctive relief can be certified only…
Iowa State University researchers have reportedly developed an inexpensive method to test whether milk was produced by grass-fed cows. Fluorescence spectroscopy, which measures light to identify the amount of chlorophyll metabolized by cows, may help regulators enforce organic milk standards requiring cows to eat a minimum of 30 percent foraged grass. The researchers reportedly found that cows fed grass only had about three times as many chlorophyll metabolites as grain- and silage-fed cows, while the organic milk samples they tested had about twice as many chlorophyll metabolites as the grain- and silage-fed cows.
A federal court has granted summary judgment to Wisconsin in an Ohio dairy's lawsuit alleging a Wisconsin law requiring butter to be graded by the U. S. Department of Agriculture or a state-licensed grader violated the commerce, due process and equal protection clauses of the U.S. Constitution. Minerva Dairy, Inc. v. Brancel, No. 17-0299 (W.D. Wis., entered February 5, 2018). In its complaint, the dairy alleged that small companies are unable to afford USDA grading or the creation of separate packaging solely for Wisconsin sales, effectively blocking them from the state’s market. Finding that Wisconsin has a legitimate government interest in requiring grading labels on butter packages to assure consumers of product quality, the court held that the law does not violate the U.S. Constitution's equal protection or due process clauses. The court reasoned that the law does not give Wisconsin butter makers "a categorical ‘competitive advantage over their counterparts outside the…
After JAMA Cardiology published a meta-analysis purporting to find “no significant association” between consumption of omega-3 fatty acids and “fatal or nonfatal coronary heart disease or any major vascular events,” industry groups reportedly criticized the conclusion, arguing that other meta-analyses find statistically significant reductions in cardiac death risks. The JAMA meta-analysis examined 10 randomized trials that involved at least 500 participants and a treatment duration of at least one year. “The U.S. Food and Drug Administration would seem to disagree with the conclusion of this study, as it has already approved at least one prescription medication for fish oil that provides benefits for people with cardiovascular issues,” the president of the Natural Products Association was quoted as saying.
An Italian appeals court has reportedly voided a fine of €550,000 previously levied on Lidl Stiftung & Co. KG for selling bottles of mislabeled olive oil. The court ruled that Italy’s Antitrust Authority (AGCM) failed to explain why the company's actions were negligent when the agency imposed the fine, which resulted from tests determining that bottles of Primadonna olive oil labeled as extra virgin contained only virgin olive oil. Although the Administrative Court of Lazio confirmed the product only met standards for virgin olive oil, it also determined that Lidl had demonstrated a normal degree of diligence in its control measures and verification systems.
