The Center for Food Safety, Center for Environmental Health and Beyond Pesticides have filed a lawsuit against the leaders of the U.S. Department of Agriculture (USDA), Agricultural Marketing Service and National Organic Program (NOP) arguing that USDA failed to allow public comments on a contaminated compost rule before issuing a guidance document on the subject. Ctr. for Envtl. Health v. Vilsack, No. 15-1690 (N.D. Cal., filed April 14, 2015). The 2011 guidance at issue allows organic producers to use compost materials treated with pesticides. According to the complaint, “NOP regulations expressly prohibit fertilizers and compost from containing any synthetic substances not included on the National List” of approved exceptions, but the Contaminated Compost decision “contravened that legal requirement, purporting to establish that organic producers may in fact use these contaminated plant and animal materials in compost under certain circumstances.” The decision was never subject to public comment, the plaintiffs argue,…
Tag Archives California
Days after the U.S. Food and Drug Administration (FDA) released a March 2015 letter warning Kind LLC against using the word “healthy” to describe several of its products, a consumer filed a class action against the company alleging negligent misrepresentation and violations of California consumer protection statutes. Kaufer v. Kind LLC, No. 15-2878 (C.D. Cal., filed April 17, 2015). The FDA Warning Letter listed the packaging of several products that an agency investigation apparently determined violated the Federal Food, Drug, and Cosmetic Act because the products’ nutrient contents do not meet federal requirements to be described as “healthy.” The letter also warned Kind against the use of “+” or “plus” as well as “No Trans Fats.” The putative class action complaint cites the FDA letter, arguing that the “healthy,” “+” or “plus” and “no trans fats” claims mislead consumers into believing that they are purchasing a healthful product. The plaintiff…
A consumer has filed a putative class action in Louisiana federal court against several California wineries alleging that their products contain “dangerously high” levels of arsenic, echoing a similar lawsuit filed in California in March 2015. Crespo-Bithorn v. The Wine Grp. Inc., No. 15-1424 (M.D. La., filed April 20, 2015). The complaint alleges that the wineries “sell and distribute wine to consumers at inorganic arsenic levels significantly higher than what the State of California considers the maximum acceptable limit for safe daily exposure” and asserts that the advertising and marketing of each wine was deceptive because it failed to warn of the arsenic levels. The plaintiff seeks national and state class certification and damages for the Louisiana cause of action of redhibition as well as alleged violations of Louisiana consumer protection statutes and the Magnuson-Moss Warranty Act. Details about the March lawsuit appear in Issue 559 of this Update. …
California EPA’s Office of Environmental Health Hazard Assessment has announced a June 16-17, 2015, workshop to gather stakeholders for discussions about emerging evidence of climate change, its drivers and impacts on water resources, agriculture, fish, wildlife, and the health and well-being of California residents. Information gathered at the event is expected to inform the 2017 edition of Cal/EPA’s Indicators of Climate Change in California report. See OEHHA Press Release, April 20, 2015. Issue 562
Two consumers have filed a putative class action against Anheuser-Busch in California state court alleging that the company misuses the “Product of U.S.A.” claim on Busch® beer cans because the product is brewed with imported hops. Nixon v. Anheuser-Busch Cos., LLC, No. 15-544985 (Cal. Super. Ct., San Francisco Cty., filed March 27, 2015). The complaint asserts that Anheuser-Busch charged premium prices for beer made in the United States despite using imported hops, or “a significant portion” of the beer. The plaintiffs allege unfair competition and a violation of California’s “Made in USA” law. They seek to represent a statewide class of purchasers and to receive damages and an injunction. Issue 561
Several policy groups, including Food & Water Watch and the Center for Food Safety, have filed a lawsuit challenging a U.S. Department of Agriculture (USDA) procedural change in how ingredients are removed from the National List, a list of synthetics exempted from the Organic Foods Production Act (OFPA). Ctr. for Food Safety v. Vilsack, No. 15-1590 (N.D. Cal., filed April 7, 2015). The National List catalogs synthetic and prohibited natural substances that may be used in organic farming despite not being inherently organic because the substances (i) have been determined by USDA not to harm human health or the environment, (ii) cannot be replaced with an organic alternative and (iii) are consistent with organic farming and handling. The groups challenge a 2013 revision to the process for removing an exempted substance from the National List. OFPA created a sunset provision that removed substances from the list—thereby prohibiting their use in…
The estate and survivors of an 89-year-old woman who died after eating imported pomegranate seeds linked to a Hepatitis A outbreak have filed a wrongful death lawsuit against Townsend Farms Inc., Costco Wholesale Corp. and others alleging strict liability for a product defect, negligence and breach of implied warranties. Schelitzche v. Townsend Farms Inc., No. BC576437 (Cal. Super. Ct., Los Angeles Cty., filed March 23, 2015). The complaint details the 2013 outbreak of Hepatitis A virus, which the U.S. Food and Drug Administration, Centers for Disease Control and Prevention, and state and local health agencies apparently traced to 3-pound bags of Townsend Farms Organic Antioxidant Blend frozen berries sold at Costco. The plaintiffs seek wrongful-death and survival damages and other general, punitive and exemplary damages. While the plaintiffs’ suit is the first to claim wrongful-death damages, details of other lawsuits stemming from the same Hepatitis A outbreak appear in Issues…
The parents of an 11-year-old boy who died in 2013 have filed a wrongful death lawsuit against Quorn Foods, Inc. and several distributors alleging that the mycoprotein in a Quorn® Turk’y Burger caused their son to go into anaphylactic shock, which resulted in his death. Bengco v. Quorn Foods, Inc., No. BC576522 (Cal. Super. Ct., C.D. Los Angeles Cty., filed March 24, 2015). The complaint calls Quorn’s product “highly processed mold,” to which the boy had a severe allergy. According to the complaint, the product label of Quorn’s Turk’y Burger lists “Mycoprotein (47%)” as the first ingredient, and the description explains that “’myco’ is Greek for ‘fungi.’” The description also explains that “[t]here are believed to be over 600,000 varieties of fungi in the world, many of which are among the most sought after foods like varieties of mushrooms, truffles, and morels” but the product is not, the complaint notes, a…
A California federal court has granted Hershey’s motion for summary judgment in a lawsuit originally alleging that the company mislabels its Kisses®, cocoa products and Ice Breakers® mints with respect to healthy diet claims, sugar-free claims, serving sizes, and the content of antioxidants, nutrients, vanillin, and polyglycerol polyricinoleic acid. Khasin v. The Hershey Co., No. 12-1862 (N.D. Cal., order entered March 31, 2015). The claims were previously cut to a single unfair competition claim over the use of the statement “natural source of flavanol antioxidants” on dark chocolate and cocoa products. Additional information about these rulings appears in Issues 463 and 523 of this Update. The plaintiff argued that Hershey’s claim implied that flavanol antioxidants conferred health benefits, despite evidence showing no such benefit. He failed to prove that the statement in question would be likely to mislead reasonable consumers, the court said. The plaintiff “testified in his deposition that Hershey’s products…
The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the comment period about whether styrene meets the criteria for authoritative bodies listings under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) until April 29, 2015. OEHHA announced its intent to list styrene as a chemical known to the state to cause cancer under the authoritative bodies listing mechanism of Prop. 65 on February 27. Styrene is used in the manufacture of various consumer products, including polystyrene packaging, synthetic rubber and food containers. Two previous attempts to list styrene as known to cause cancer under Prop. 65’s Labor Code listing mechanism failed. The agency’s latest attempt relies on findings in the National Toxicology Program’s (NTP’s) 2011 Report on Carcinogens which concluded that styrene is “reasonably anticipated to be a human carcinogen” based on studies showing that inhalation and oral exposure to the chemical…
