A jury in an Iowa federal court has reportedly determined that International Flavors and Fragrances Inc. (IFF) was not liable for the lung condition a man allegedly developed from microwaving popcorn containing diacetyl, a butter flavoring ingredient used in the product. Stults v. Int’l Flavors & Fragrances Inc., No. 11-4077 (U.S. Dist. Ct., N.D. Iowa, verdict entered August 19, 2014). The plaintiff claimed that the company had breached the implied warranty of fitness for its butter flavoring, which had a foreseeable use in microwave popcorn packages. IFF was the only remaining defendant during the seven-day trial out of some half-dozen companies originally sued for $27 million in compensatory damages. See Law360, August 20, 2014. Issue 535
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In a petition for a writ of certiorari, plaintiffs alleging harm by exposure to the flavoring agent diacetyl have argued that the Third Circuit erred in ruling that Aaroma Holdings cannot be held liable for the actions of diacetyl producer Emoral Inc., which Aaroma purchased following the alleged exposures. Diacetyl Plaintiffs v. Aaroma Holdings, No. 14-71 (U.S., petition for writ of certiorari filed July 18, 2014). The terms of the 2010 purchase agreement confirming Aaroma’s acquisition of Emoral apparently noted that Emoral may be subject to diacetyl litigation and stated that Aaroma did not assume liability for any future claims. Emoral filed for bankruptcy protection in 2011, and the bankruptcy trustee reportedly released Aaroma from future diacetyl causes of action against Emoral in exchange for $500,000. In addition to accusing the Third Circuit of diverging from binding precedent on injured creditors’ claims, the plaintiffs’ petition argues that the decision is contrary…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has added methyl isobutyl ketone to the list of chemicals known to the state to cause reproductive toxicity under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). The chemical is used as a solvent for vinyl, epoxy, acrylic and natural resins, and as a synthetic flavoring adjuvant and a fruit flavoring. According to OEHHA, the listing is based on the authoritative body listing mechanism because the U.S. Environmental Protection Agency has identified it as a chemical that causes reproductive toxicity. The listing is effective March 28, 2014, and will require exposure warnings to consumers. See OEHHA News Release, March 28, 2014. Issue 518
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the comment period on its notice of intent to list beta-myrcene as known to the state to cause cancer under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). OEHHA took the action at the request of several trade organizations, including the Flavor and Extract Manufacturers Association, North America Juice Products Association, and Renewable Citrus Products Association. The new comment deadline is March 24, 2014. OEHHA has proposed adding beta-myrcene—a natural food-plant constituent used as a flavoring agent in food and beverages—to the Prop. 65 list under the authoritative bodies listing mechanism. According to the agency, the National Toxicology Program and several other institutions have concluded that the chemical causes kidney cancer in male rats and liver cancer in male mice. See OEHHA News Release, March 4, 2014. In other OEHHA action, the Developmental and Reproductive…
According to a news source, the plaintiffs and defendants in litigation over a respiratory condition allegedly caused by the daily consumption of microwave popcorn containing the butter-flavoring compound diacetyl have settled the claims following a court’s reduction of the jury’s $7-million verdict to $5.78 million, including fees and costs. Watson v. Dillon Cos., Inc., No. 08-91 (D. Colo.). Additional details about the litigation appear in Issue 497 of this Update. Plaintiffs’ counsel Ken McClain reportedly indicated that the settlement terms were confidential. See Law360, February 24, 2014. Issue 515
The European Commission (EC) has published legislation listing the 10 smoke flavoring primary products authorized for use in food. According to Smoke Flavoring Regulation EC No. 2065/2003, these primary products include smoke condensates and tar fractions that can be used directly on foods such as meat and fish to impart a smoky flavor or in the production of derived smoke flavorings, which are then added to a variety of foods and sauces. Reflecting input from the European Food Safety Authority, the Commission’s latest list describes the maximum permitted level for each primary product and the foods to which they can be added. “When authorized smoke flavorings are used in or on food, their use must be in accordance with the conditions of use, including maximum levels, set in the Annex to this Regulation. When authorized smoke flavorings are used in combination, the individual levels should be reduced proportionally,” concludes the…
A recent New York Times article focused on advances in synthetic biology has claimed that the exponential growth in genetically modified (GM) yeast applications “could revolutionize the production of some of the most sought-after flavors and fragrances,” including vanilla, saffron, patchouli, and stevia. According to the October 20, 2013, article, food, cosmetic and pharmaceutical companies seeking plant extract alternatives are increasingly turning to GM yeast and other micro-organisms “cultured in huge industrial vats” to synthesize vanillin, valencene, nootkatone, and other chemicals as byproducts of the fermentation process. Proponents of this technique have not only argued that the yeast-made flavorings are less expensive to manufacture than their plant-based counterparts, but that the end result is a natural ingredient because it originates in a living organism. “The need for natural is a key driver,” said Ahmet Baydar, director of research and development at International Flavors and Fragrances, which reportedly hopes that yeast-made…
A federal court in California has dismissed with limited leave to amend the second amended complaint filed on behalf of a putative nationwide class against Welch Foods, alleging that the company’s juice, beverage, spread, and jelly labels and Website violate California labeling law by including “no sugar added,” “all natural,” “no artificial flavors,” and “high in antioxidants” statements. Park v. Welch Foods, Inc., No. 12-6449 (N.D. Cal., order entered September 26, 2013). Agreeing that the complaint sounded in fraud and must comply with the heightened pleading standard of Federal Rule of Civil Procedure 9, the court noted that “Welch is after the who, what, where, when, and how surrounding the circumstances in which Plaintiffs were misled.” The company apparently argued that “portions of the complaint are generously and blindly appropriated from similar complaints filed in this district,” and that a 15-page limit would be appropriate. Still, “Welch wants to know specifically…
A federal court in California has dismissed in part and granted in part allegations in a second amended, putative class complaint filed against three food and beverage companies for alleged violations of state consumer fraud laws in the labeling claims on a plethora of products including chewing gum, juices, cookies, crackers, granola, stuffing, and cheese. Ivie v. Kraft Foods Global, Inc., No. 12-2554 (N.D. Cal., San Jose Div., order entered June 28, 2013). Information about a previous ruling in the case appears in Issue 473 of this Update. The court dismissed with prejudice (i) the plaintiff’s claim that a “natural flavors” label on Crystal Light® is misleading because the product contains artificial flavors; the court found that the two specific ingredients alleged to be “artificial” flavors are artificial ingredients and nothing in the Food and Drug Administration regulations suggests that potassium citrate and sodium citrate are flavors; and (ii) the…
A Connecticut-based law firm has filed Proposition 65 (Prop. 65) lawsuits against three companies that make food extracts and flavorings, alleging that they fail to disclose the presence of 4-Methylimidazole (4-MEI), a substance known to California to cause cancer. Leeman v. Adams Extract & Spice Co., LLC, No. 13-529493; Leeman v. McCormick & Co., Inc., No. 13-529494; Leeman v. Farmer Bros. Co., No. 13 529495 (Cal. Super. Ct., San Francisco Cty., filed March 13, 2013). Named plaintiff Whitney Leeman claims to hold a doctorate in environmental engineering and seeks “to promote awareness of exposures to toxic chemicals in products sold in California.” She provided 60-day notices of violation to the companies in December 2012 concerning their alleged failure to warn consumers about 4-MEI exposure. The products specifically named in the complaints are Adams’ “Extract Maple Imitation Maple Flavor,” McCormick’s “Culinary Imitation Maple Flavor” and “Culinary Caramel Color,” and Farmer’s “Sierra Brand…
