A federal court in California has refused to dismiss most of the putative class claims filed by a consumer against a company that made an alcoholic beverage containing high levels of caffeine, finding that a federal alcohol labeling law did not preempt state-law claims based on labeling or advertising and that the allegations of economic injury are sufficient to establish standing under California’s Unfair Competition Law (UCL). Cuevas v. United Brands Co., Inc., No. 11-991 (S.D. Cal., order entered March 8, 2012). The defendant manufactured and sold JOOSE®, a flavored beverage with about 125 mg caffeine and 9.9 to 12 percent alcohol, from 2007 until it voluntarily removed the product from the market in December 2010 after receiving a warning letter from the Food and Drug Administration (FDA). The plaintiff allegedly purchased the product on two occasions in April and August 2010 and subsequently filed suit alleging that the defendant violated…
Tag Archives alcohol
The Food and Drug Administration issued a warning letter to BreathableFoods, Inc., which makes AeroShot Energy®, an “inhalable”caffeine product, on March 5, 2012. According to the agency, the AeroShot product is misbranded because it is labeled as intended for inhalation while the company’s Website indicates that the product is intended for ingestion. “Your labeling is false and misleading because your product cannot be intended for both inhalation and ingestion,” states the letter. FDA also notes that the product label fails to include a domestic address or phone number through which reports of serious adverse events associated with the product may be received. The letter further informs the company that FDA has “safety questions about the possible effects of your product.” FDA expresses concerns regarding “contradictory messages” about use of the product “in combination with alcohol. On the one hand, your website includes a posting of a news interview in which…
According to Senator Charles Schumer (D-N.Y.), the Food and Drug Administration (FDA) has agreed to investigate the safety and legality of AeroShot®, which allows consumers to inhale a powder delivering 100 mg of caffeine to the body. Created by a Harvard professor and a company led by Harvard graduate Tom Hadfield, the product was apparently launched in January 2012 in New York and Boston markets. Its sale is not limited by any age restrictions nor has the product been reviewed by any agency. Still, Hadfield has reportedly indicated that the FDA review “will conclude that AeroShot is a safe, effective product that complies with FDA regulations.” Schumer called for the FDA review in a December 2011 letter raising concerns about the use of caffeine by children and adolescents. He also noted that a company marketing video “flashes through a variety of settings, including a dance party, a club scene, and…
A university lecturer in global health politics at the University of Oxford has called for the World Health Organization (WHO) to use a “vastly underused” mechanism, a legally binding framework convention requiring just a two-thirds vote, to address the health burdens and mortality purportedly attributed to alcohol consumption. In the February 16, 2012, issue of Nature journal, Devi Sridhar, D.Phil., points to WHO’s Framework Convention on Tobacco Control as one of just two such treaties adopted in more than 60 years. These conventions impose legal requirements on member states, which commit to applying the agreement through national legislation and must report their progress to WHO. According to Sridhar, “2.5 million deaths a years, almost 4% of all deaths worldwide, are attributed to alcohol—more than the number of deaths caused by HIV/ AIDS, tuberculosis or malaria. Alcohol consumption is the world’s third-largest risk factor for health burden; in middle-income countries, which…
The Seventh Circuit Court of Appeals has turned aside a challenge to an Indiana law that prevents an alcoholic beverage retailer from shipping wine to its customers via motor carrier. Lebamoff Enters., Inc. v. Huskey, No. 11-1362 (7th Cir., decided January 17, 2012). The retailer claimed that the law was preempted by the Federal Aviation Administration Authorization Act of 1994 and that it violated the dormant Commerce Clause of the U.S. Constitution. Writing for the panel, Judge Richard Posner explained that the Twenty-First Amendment, which confers core powers on the states to regulate the sale of alcoholic beverages, places a thumb on the scale balancing state and federal interests. If the state interests are within those core powers, wrote Posner, there is a “‘strong presumption’ of validity.” According to the court, Indiana requires that drivers employed by liquor retailers be trained in the state’s alcohol laws and the recognition of…
A federal court in Illinois has determined that insurers providing coverage to Phusion Projects, Inc., which makes Four Loko, an alcoholic beverage with large amounts of caffeine and other stimulants, do not have a duty to defend the company in lawsuits alleging injury from intoxication. Netherlands Ins. Co. v. Phusion Projects, Inc., No. 11-1253 (N.D. Ill., decided January 17, 2012). The insurers filed a declaratory judgment action against Phusion claiming that they had no duty to defend or indemnify it in five lawsuits because of an unambiguous exclusion from coverage in the applicable insurance policies. Phusion brought a counterclaim, arguing that they did have a duty to defend it. According to the court, the exclusion applies to any case alleging injury arising from intoxication. Because four of the five cases filed against Phusion involve injury attributable to intoxication, the court found that the insurers have no duty to defend the beverage…
According to news sources, the Center for Food Safety, which lost its challenge to the U.S. Department of Agriculture’s (USDA’s) decision to deregulate without restriction genetically engineered (GE) alfalfa, plans to appeal the matter to the Ninth Circuit Court of Appeals. A federal court in California determined on January 5, 2012, that the law does not require the agency to “account for the effects of cross-pollination on other commercial crops” in assessing whether a new crop poses risks. U.S. District Judge Samuel Conti also reportedly said that USDA lacks the authority to require a buffer zone between GE crops and conventional or organic crops. Noting that the Environmental Protection Agency (EPA) has approved the use of glyphosate on Roundup Ready® alfalfa, Conti further observed, “If plaintiffs’ allegations are true, then it is disturbing that EPA has yet to assess the effects of glyphosate on most of the species found near…
A federal court in Illinois has granted the motion to dismiss filed by Phusion Projects, Inc., which sells Four Loko®, a caffeinated alcoholic beverage, in a case brought by one of the company’s insurers seeking a declaration that it owed no duty to defend or indemnify the beverage maker in third-party lawsuits claiming injury, death or economic harm. Selective Ins. Co. of S.C. v. Phusion Projects, Inc., No. 11-3378 (N.D. Ill., decided November 15, 2011). According to the court, the case presented no case or controversy because Phusion has withdrawn its tender of defense and request for indemnification from this insurer. Because Phusion refused to withdraw its request “with prejudice and for all purposes” and continued to provide the insurer with notice of new claims “in compliance with the policy notice provision,” the insurer argued that the beverage company was reserving its right to reassert a demand for coverage in…
The attorneys general of a number of states have submitted a comment to the Federal Trade Commission (FTC) taking issue with several aspects of a proposed settlement agreement with the company that makes the caffeinated alcoholic beverage Four Loko®. Additional information about the proposed settlement appears in Issue 412 of this Update. Attached to the November 16, 2011, letter are numerous Facebook comments by individuals who apparently “like” various Four Loko® photos, press announcements and news items. The AGs express their concern that FTC will allow Phusion “to market as much as 2.5 servings of alcohol (1.5 oz of ethanol) as if it were one serving and avoid the Order’s requirements for label disclosure and resealability, and its prohibition against depicting consumption directly from the can. By condoning the marketing of ‘single serving’ FMBs [flavored malt beverages] with 2.5 servings of alcohol, the Order would undermine federal guidelines for moderate…
The European Food Safety Authority’s (EFSA’s) Panel on Dietetic Products, Nutrition and Allergies (NDA) has issued a scientific opinion on the use of egg-derived lysozyme in wine manufacturing after the Oenological Products and Practices International Association (OENOPPIA) applied to permanently exempt the anti-microbial stabilizer from labeling requirements. According to NDA, which was tasked with assessing the likelihood of allergic reaction to lysozyme-treated wine, the additive is approved for use in some foods to control lactic acid bacteria but “must follow purity specifications set forth in European legislation.” Because it can evidently be used “at different stages of wine production and at different doses,” lysozyme was detected in some wines at residual amounts “considered sufficient to trigger allergic reactions in susceptible individuals.” OENOPPIA had apparently argued that lysozyme is not only “the weakest allergen among the four major egg white proteins,” but unlikely to cause a clinical reaction in egg-allergic individuals…
