The Ninth Circuit Court of Appeals has found that the district court did not abuse its discretion in granting a preliminary injunction blocking a requirement to warn California consumers about the presence of acrylamide in food and beverage products. Cal. Chamber of Com. v. Council for Education and Research on Toxics, No. 19-2019 (9th Cir., entered March 17, 2022). Filed by the California Chamber of Commerce, the suit alleges that requiring the warning for products containing chemicals listed under the state's Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) on products with acrylamide would violate the organization's members' "First Amendment rights to not be compelled to place false and misleading acrylamide warnings on their food products." The district court held that the state did not show the Prop. 65 acrylamide warning was "purely factual and uncontroversial." "[D]ozens of epidemiological studies have failed to tie human cancer to…
Tag Archives California
The Ecological Alliance has reportedly filed a lawsuit in California state court alleging The Kroger Co. failed to warn consumers about the presence of lead in several of its foods. Ecological Alliance LLC v. Kroger Co. (Cal. Super. Ct., Los Angeles Cty., no. and filing date unavailable). The complaint alleges that Kroger sells fifteen products that contain lead, including graham crackers, salad kits, bagels and spaghetti. The plaintiff advocacy organization purports to have tested the products and found levels of lead up to 140 times the limit set by California's Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Ecological Alliance, which seeks injunctions preventing Kroger from selling lead-contaminated products without a Prop. 65 warning, alleges that it sent violation letters to Kroger and the California attorney general in the summer and fall of 2021, but the government agencies failed to take action against the company.
Regulations governing the use of per- and polyfluoroalkyl substances (PFAS) continue to evolve. In California, the Office of Environmental Health Hazard Assessment (OEHHA) announced the addition of perfluorooctanoic acid (PFOA), one type of PFAS, to the list of chemicals established under the state's Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). The U.S. Food and Drug Administration (FDA) issued a constituent update about the results of tests for PFAS in food. The study purportedly found that 89 of 92 food samples "had no detectable levels of PFAS"; the three that contained the substance were seafood—tilapia, cod and shrimp. "To date, there have been 10 samples with detectable PFAS out of 532 [Total Diet Study (TDS)] samples the FDA has tested since 2019," the update notes. "Based on the best available current science, the FDA has no scientific evidence that the levels of PFAS found in the TDS…
A plaintiff has filed a putative class action alleging that Mead Johnson & Co. markets its Enfamil infant formula products as "milk-based" despite containing corn-syrup solids as the primary ingredient. Martinez v. Mead Johnson & Co. LLC, No. 22-0213 (C.D. Cal., E. Div., filed February 2, 2022). The front-label packaging indicates that the product is a "milk-based powder," the complaint asserts, but "corn syrup solids" is listed as first on the ingredient list on the back of the packaging. The plaintiff argues that added sugars are banned in infant formulas sold in Europe in favor of carbohydrates that come from lactose. "[C]onsumers are being deceived into believing they are receiving a milk-based, healthier formula for their infant when, in reality, they are feeding their baby a product where the primary ingredient is unhealthy corn syrup." The plaintiff seeks damages, restitution, class certification, injunctive relief and attorney's fees for alleged violations of…
Two plaintiffs have alleged that McCormick & Co. Inc. sells herbs and spices that "expose consumers to heightened levels of toxic heavy metals, including lead, arsenic, and cadmium," without providing warnings. Balistreri v. McCormick & Co. Inc., No. 22-0349 (N.D. Cal., filed January 18, 2022). The complaint cites a Consumer Reports article, "Your Herbs and Spices Might Contain Arsenic, Cadmium, and Lead," that purports to have found "sufficient levels of toxic metals as to render them unsafe for human consumption." "As a result of Defendant’s respective representations regarding the safety of their herbs and spices, and Defendant’s concealment of the fact that its herbs and spices contained elevated levels of toxic heavy metals, Plaintiffs and the Class members reasonably believed that Defendant’s Products were free from substances that would negatively affect children’s development as well as their own health," the complaint asserts. The plaintiffs seek to represent a class of consumers alleging violations…
A plaintiff has filed a putative class action alleging that Kellogg Sales Co. misleads consumers as to the quantity of vegetables in its MorningStar "Veggie" products, including "Veggie Burgers," "Veggie Dogs," "Veggitizers" and "Veggie Chik'n." Kennard v. Kellogg Sales Co., No. 21-7211 (N.D. Cal., filed September 17, 2021). Kellogg represents its products as "Veggie," the complaint asserts, "but this representation is false or at least highly misleading because the predominant non-water ingredient in all of the Veggie Products is not vegetables—or even vegetable-based—but instead, grain or oil." The consumer also argues that the "Veggie" products violate California law "by using product names that include the term 'VEGGIE' while failing to disclose the percentage of vegetables in the products, which have a material bearing on the price and consumer acceptance of the Veggie Products." The plaintiff alleges violations of California consumer-protection statutes as well as breach of warranties and seeks class…
A consumer has alleged that The Kroger Co. misleads with its packaging for sparkling water products sold with flavors such as "Black Cherry," "White Grape" and "Kiwi Strawberry" because the waters are purportedly flavored artificially rather than with extracts of the fruits. Gammino v. Kroger Co., No. 21-2933 (N.D. Cal., filed April 22, 2021). The complaint asserts that Kroger's "packaging, labeling, and advertising scheme for these Products is intended to give consumers the impression that they are buying a premium, all-natural product instead of a product that is artificially flavored." The plaintiff asserts that the flavoring in the beverages comes from malic acid, "a synthetic chemical manufactured in a petrochemical factory from petroleum feedstocks." The complaint lists several causes of action, including alleged violations of Ohio and California's consumer-protection statutes as well as fraud by omission, negligent misrepresentation and money had and received.
The National Organic Program can continue to include foods grown through hydroponics following a ruling from a California federal court holding that the U.S. Department of Agriculture (USDA) acted reasonably in concluding that the statutory scheme does not exclude hydroponics. Ctr. for Food Safety v. Perdue, No. 20-1537 (N.D. Cal., entered March 18, 2021). The Center for Food Safety (CFS) had sought to limit foods labeled as "organic" to only foods grown in soil, but the USDA denied the advocacy group's petition. "The petition denial should not be disturbed because USDA reasonably defends its determination that [the Organic Foods Production Act (OFPA)] does not compel the prohibition of hydroponics," the court held. "USDA’s ongoing certification of hydroponic systems that comply with all applicable regulations is firmly planted in OFPA. It therefore provides the 'reasonable explanation' required on review, so its denial will not be vacated."
A California federal court has ruled that the state "has not shown that the cancer warnings it requires are purely factual and uncontroversial" or "that Proposition 65 imposes no undue burden on those who would provide a more carefully worded warning." Cal. Chamber of Com. v. Becerra, No. 19-2019 (E.D. Cal., entered March 29, 2021). The California Chamber of Commerce filed a lawsuit seeking to enjoin new lawsuits from enforcing the Safe Drinking Water and Toxic Enforcement Act (Prop. 65) against foods that contain acrylamide. The court considered evidence on the toxicity of acrylamide, finding that "some evidence does support such an inference" that eating food with acrylamide will increase a person's risk of cancer, but "dozens of epidemiological studies have failed to tie human cancer to a diet of food containing acrylamide. Nor have public health authorities advised people to eliminate acrylamide from their diets. They have at most…
The California Office of Environmental Health Hazard Assessment (OEHHA) has announced that it intends to add perfluorooctanoic acid (PFOA) to the list of substances known to cause cancer or reproductive harm under the state's Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). PFOA, known as a "forever chemical," can be found in nonstick surfaces and food packaging, among other items. OEHHA will accept comments on the determination until May 3, 2021.
