A European Court of Justice panel has determined that a German winemaker may not, under European Union law, place labels on its bottles including the word bekömmlich (meaning digestible, wholesome or nourishing). Deutsches Weintor eG v. Land Rehinland-Pfalz, Case C 544/10 (E.C.J., decided September 6, 2012). According to the court, “[b]y highlighting only the easy digestion of the wine concerned, the claim at issue is likely to encourage its consumption and, ultimately, to increase the risks for consumers’ health inherent in the immoderate consumption of any alcoholic beverage. Consequently, the prohibition of such claims is warranted in light of the requirement to ensure a high level of health protection for consumers.” The matter returns to a German court for final ruling.
Tag Archives alcohol
The Louisville Metro Air Pollution Control District has reportedly issued violation notices concerning emissions from a whiskey warehouse owned by Diageo Americas Supply Inc., citing odor complaints and complaints about a black, sooty substance on neighboring properties between May 2011 and May 2012. The violations apparently carry a potential penalty of $10,000 per violation per day. An air district spokesperson reportedly said, “This is not a dangerous mold. But it’s a nuisance. These people’s homes are affected by it.” The company was given until November 3, 3012, to submit a plan on how it can comply with air-quality regulations. Information about the property damage lawsuit filed by Louisville residents against the company is included in Issue 444 of this Update. See Courier-Journal.com, September 12, 2012.
A California winery has filed a complaint against Anheuser-Busch, LLC seeking a declaration that the winery has not infringed any of the brewer’s protectable trademark rights and that the winery’s use of the BOW TIE word mark and Bow Tie slogan to sell its wine “does not constitute unfair competition.” San Antonio Winery, Inc. v. Anheuser-Busch, LLC, No. 12-7067 (C.D. Cal., filed August 16, 2012). The winery claims that it started using the BOW TIE word mark in the United States in 2012 and had filed a trademark application for the mark in November 2011. After the application was published for opposition, Anheuser-Busch allegedly demanded that the winery abandon the application and refrain from using the BOW TIE word mark on the ground that the brewer held design marks depicting bow ties and that “there is a likelihood of consumer confusion, mistake, or deception between San Antonio’s BOW TIE Word Mark…
A Texas appeals court has dismissed product liability and negligence claims filed by a woman injured when she was struck twice in the face with a longneck beer bottle during a birthday celebration at a bar known for its violence. Gann v. Anheuser-Busch, Inc., No. 08-00017 (Tex. App., 8th Dist., July 25, 2012). Affirming the trial court’s grant of the defendants’ motion for summary judgment, the appeals court determined that the plaintiff “failed to produce more than a scintilla of evidence that the longneck bottle was defectively designed so as to render it unreasonably dangerous and failed to establish that Appellees owned her a legal duty to protect her from the criminal acts of a third person.” Specifically, the court found insufficient evidence that the risk of injury from the bottle’s design outweighs its utility despite the plaintiff’s assertions that “beer bottles are used commonly in assaults in the local…
FDA has issued a request for comments on a proposed information collection that will add the manufacturers of certain beers as respondents to its labeling regulations and seeks Office of Management and Budget approval of allergen labeling for these beers. The agency explains that after the Alcohol and Tobacco Tax and Trade Bureau determined that certain beers, which are made from substitutes for malted barley, such as sorghum, rice or wheat, do not meet the definition of “malt beverage” and are thus not subject to its regulations, the Food and Drug Administration (FDA) prepared draft guidance to assist these manufacturers in complying with its labeling regulations. On the basis of the labeling regulations discussed in the guidance, the agency provides estimates of the average burden per disclosure for each regulation— that is, “12 respondents will each label 2 products annually, for a total of 24 labels” and “the manufacturers will…
The European Union (EU) General Court has affirmed a ruling of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and dismissed the application of a beverage company to register “Royal Shakespeare” as a word mark for its scotch whiskey. Jackson Int’l Trading Co. Kurt D. Brühl GmbH & Co. KG v. OHIM, Case T-60/10 (Gen. Ct., decided July 6, 2012). According to the court, the Royal Shakespeare Co. had registered “Royal Shakespeare Company” three years before Jackson International sought to register its mark, the theater company’s mark has a reputation before the public at large and not among an elite as argued by Jackson International, and the beverage maker’s use of the mark would take “unfair advantage of the distinctive character or the repute of the earlier trade mark.”
A New York resident has filed a putative class action against Diamond Pet Foods and Amazon.com, seeking medical monitoring for pets that consumed recalled Salmonella-tainted pet food. Cohen v. Schell & Kampeter, Inc., d/b/a Diamond Pet Foods, No. 12-3299 (E.D.N.Y., filed July 2, 2012). Plaintiff Steven Cohen alleges that he fed his dogs Taste of the Wild® brand pet food, purchased from Amazon.com, and that they became ill, vomiting frequently, “which caused damage to Plaintiff’s property.” Seeking to certify a nationwide class and statewide subclass of consumers, the plaintiff alleges breach of implied and express warranty, strict products liability, violations of state consumer fraud laws, negligence, and unjust enrichment. In addition to medical monitoring, the plaintiff seeks actual damages or restitution, attorney’s fees, costs, and interest. A Canadian non-profit representing the interests of foie gras producers, a New York-based foie gras producer and a company that operates restaurants in California have…
The Wisconsin Supreme Court has decided which of the parties sued over an E. coli outbreak that sickened dozens of Sizzler Steak House patrons in 2000 and caused the death of a 3-year-old are liable for consequential damages, indemnity and costs under various supply chain and insurance contracts. Kriefall v. Sizzler USA Franchise, Inc., Nos. 2009AP1212 & 2010AP491 (Wis., decided June 29, 2012). Among other matters, the court ruled that Sizzler was entitled to (i) recover consequential damages for the meat supplier’s breach of implied warranties despite limiting language in the continuing guaranty provision of their contract, and (ii) indemnity from the meat supplier for Sizzler’s advance partial payment to the family of the deceased child “because the payment was not voluntary and the jury found that Sizzler was zero percent liable for the E. coli contamination.” The court also ruled that Sizzler could not recover its attorney’s fees despite a jury finding…
This week’s issue of PLoS Medicine includes an article in its “Big Food” series titled “Manufacturing Epidemics: The Role of Global Producers in Increased Consumption of Unhealthy Commodities Including Processed Foods, Alcohol, and Tobacco.” According to the authors, “market data on commodity sales from EuroMonitor Passport Global Market Information database 2011 edition” show a “significant penetration by multinational processed food manufacturers such as Nestle, Kraft, PepsiCo, and Danone into food environments” in low- and middle-income countries. They suggest that this penetration coincides with a growth in the consumption of unhealthy commodities that is reaching and even exceeding “a level presently observed” in high-income countries. Comparing data on global trends in tobacco and alcohol commodities, the authors claim that “population consumption of unhealthy non food commodities such as tobacco and alcohol are strongly correlated with unhealthy food commodity consumption. In other words, in countries where there are high rates of tobacco…
According to a news source, Whole Foods Market Inc. is seeking to stop its deposition in consumer fraud litigation filed against Skinny Girl Cocktails LLC, arguing that it does not own or operate Whole Foods retail stores nor does it “decide which suppliers, food brokers or distributors are to be used by Whole Foods Market retail locations.” Greene v. Skinny Girl Cocktails LLC, 12-550 (W.D. Tex., motion to quash filed June 22, 2012). A number of putative class actions alleging that the defendants falsely market margaritas as “all natural” were filed in district courts around the country after Whole Foods stores pulled the product from their shelves upon learning that it contains sodium benzoate as a preservative. An effort to have the actions consolidated before a multidistrict litigation court failed; additional details about that ruling appear in Issue 422 of this Update. See Law360, June 25, 2012.
