The parents of a 29-year-old who died after he fell into a vat of chocolate
have filed a wrongful death action in a Pennsylvania state court against the
company that owned the plant where he worked and a number of other
defendants involved in manufacturing the allegedly faulty equipment that
purportedly led to the accident. Smith v. Lyons & Sons, Inc., No. __ (Pa. Ct. Com. Pleas, Philadelphia Cty., filed July 1, 2011). The decedent
allegedly slipped on a cardboard-covered platform made slippery with
chocolate and other materials and fell into the vat through unguarded holes.
The vat was “processing, mixing and melting chocolate at extremely high
temperatures at the time.” Co-workers were allegedly unable to stop the vat
from operating because the switch was not located on the platform. Alleging
negligence, strict liability and breach of express and implied warranties, the
plaintiffs seek damages in excess of $50,000.

The American Beverage Association has filed a petition in a New York state court under the Freedom of Information Law (FOIL) against the New York City Department of Health and Mental Hygiene, seeking an order requiring the department to produce documents relating to its “anti-soft drink campaign entitled [sic] ‘Pouring on the Pounds.’” Am. Beverage Ass’n v. NYC Dept. of Health and Mental Hygiene, No. 11 107721 (N.Y. Sup. Ct., N.Y. Cty., filed July 1, 2011). Details about the advertising campaign, which depicted globs of human fat gushing from a soda bottle and ran in 1,500 subway cars for three months, appear in Issue 318 of this Update.

According to the petition, the association sought “a broad array of records, including documents referenced in a recent article in The New York Times, which described a fundamental disagreement within the [department] concerning the scientific validity of the claims asserted in the Campaign.” The department allegedly delayed its production of documents and denied part of the request, “resulting in an inadequate release of approximately 2,700 pages of documents.” The association contends that the department “dramatically exceeded the scope” of two narrow FOIL exemptions “to withhold the release of critical records to which the [association] is most assuredly entitled.” The exemptions at issue protect pre-decisional opinions and recommendations circulated intra- or inter-agency, and records constituting trade secrets or that could cause competitive injury.

Residents of California, Florida and New Jersey have filed a putative class action against ConAgra Foods, Inc. alleging that the company misrepresents its Wesson Oil Brands as “100% Natural” when they actually contain genetically modified ingredients. Scarpelli v. ConAgra Foods, Inc., No. 11-04038 (D.N.J., filed July 14, 2011). Filed in a New Jersey federal court, the complaint is similar to a putative class action filed in California in June 2011. Additional details about that lawsuit appear in Issue 400 of this Update.

Seeking to certify a nationwide class of Wesson Oil consumers as well as California, Florida and New Jersey subclasses, the plaintiffs allege violation of the Magnuson-Moss Act, unjust enrichment, breach of express warranty, violation of state consumer fraud laws, false advertising, and unfair and deceptive trade practices; they request compensatory, treble and punitive damages; prejudgment interest; restitution; injunctive relief; and attorney’s fees and costs.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.