The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has announced a May 7, 2015, meeting of its Developmental and Reproductive Toxicant Identification Committee (DARTIC) to consider the addition of bisphenol A (BPA) to the list of chemicals known to the state to cause reproductive toxicity. Citing the availability of new epidemiological and toxicological data, DARTIC will assess “whether BPA has been clearly shown by scientifically valid testing according to generally accepted principles to cause female reproductive toxicity.” OEHHA has also made available hazard identification materials on BPA and female reproductive toxicity and requested public comments by April 6, 2015. After adding BPA to the list of reproductive toxicants under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) in April 2013, OEHHA delisted the substance following a court injunction. In January 2015, the court ruled that the agency could list BPA under Prop. 65…
Tag Archives California
The University of California, Davis, and the California Strawberry Commission (CSC) have issued a joint press release announcing the settlement of CSC’s lawsuit and the university’s countersuit. CSC initially alleged that the university allowed two of its strawberry developers to leave its employment to privatize the cultivation process using money provided by CSC growers, and the university filed a counterclaim accusing CSC of unfair business practices. Conclusion of the lawsuit coincided with the university’s hiring of Steven Knapp, former global director of Monsanto’s Vegetable Research and Development, who will oversee the university’s new strawberry breeding program. “Over the next five years, UC Davis will release new strawberry varieties available to all farmers, and the California Strawberry Commission will assist UC Davis in its identification of new commercial varieties,” the press release states. In addition, “a new strawberry advisory committee will be formed, comprised of university representatives, strawberry farmers and commission…
A consumer has filed a proposed class action in California federal court alleging that Chiquita Brands, Inc. is responsible for the destructive practices of its “de facto subsidiary,” Cobigua, including the effects of its use of pesticides on the water supply of neighboring communities. Jablonowski v. Chiquita Brands, Inc., No. 15-262 (S.D. Cal., filed February 5, 2015). In the complaint, the plaintiff points to Chiquita’s efforts to represent itself as a responsible company that protects natural ecosystems—including its “famous blue sticker” designed to show that a banana meets the company’s “strict standards”—and he argues that the company indicates that its suppliers are held to the same standards. Cobigua, a Guatemalan company that apparently sells about 95 percent of its stock to Chiquita, “contaminates rivers and drinking water in the affected area with fertilizers, pesticides, fungicides, and organic matter” and “mixes fertilizers into its irrigation system every 14 to 21 days…
A consumer has filed a putative class action alleging the $1 surcharge that P.F. Chang’s imposes on its gluten-free menu items violates the Americans with Disabilities Act (ADA) by discriminating against those with celiac disease. Phillips v. P.F. Chang’s China Bistro, No. 15-344 (N.D. Cal., removed to federal court January 23, 2015). The complaint asserts that P.F. Chang’s maintains a separate gluten-free menu that charges $1 more than seemingly identical items on its regular menu and that it does not add a similar surcharge for other dietary accommodations. The plaintiff alleges that the surcharges lack justification because they “do not reflect additional costs of ingredients” and some of the items “are the same as the non-gluten free options or contain fewer ingredients” or are “naturally gluten free.” The plaintiff seeks certification of a California class and violations of the state’s Unruh Act, Disabled Persons Act and Unfair Competition Law. Issue…
The Fourth Circuit Court of Appeals has affirmed a lower court’s dismissal of a case alleging that Kraft spammed an Internet service provider (ISP) with advertisements for its Gevalia® coffee products. Beyond Systems, Inc. v. Kraft Foods, Inc., No. 13-2137 (4th Cir., order entered February 4, 2015). Beyond Systems sued Kraft alleging violations of Maryland’s and California’s anti-spam statutes, but the circuit court agreed with the district court’s determination that Beyond Systems “invited its own purported injury and thus could not recover for it.” Beyond Systems is a Maryland ISP with servers housed at the residence of the owner’s parents, and the owner’s brother owns Hypertouch, Inc., a similar “nominal” ISP with servers in California. Both ISPs host websites with hidden email addresses that only “spam crawlers” can find, and Beyond Systems uses the email addresses as “spam traps”; the court notes that “spam-trap-based litigation has accounted for 90% of…
A California federal court has allowed most of the claims to proceed in a lawsuit alleging that Marie Callender’s baking mixes are labeled “all natural” despite containing the synthetic ingredient sodium acid pyrophosphate. Musgrave v. ICC/Marie Callender’s Gourmet Prods. Div., No. 14-2006 (U.S. Dist. Ct., N.D. Cal., order entered February 5, 2015). The court dismissed the plaintiff’s request for an injunction and unjust enrichment claim but denied the food company’s motion to dismiss all other claims. The court assessed each argument in the motion to dismiss in turn, finding first that the plaintiff’s claims were not preempted by the Federal Food, Drug, and Cosmetic Act or subject to the primary jurisdiction of the U.S. Food and Drug Administration. It then discussed whether a reasonable consumer would be deceived by the term “natural” on the baking mixes. The court dismissed the food company’s argument that the plaintiff offered inconsistent meanings of “natural”…
Steven Neil, the former CFO of Diamond Foods Inc., has agreed to pay $125,000 to settle a U.S. Securities and Exchange Commission (SEC) lawsuit alleging that he directed his employees to underreport the amount of money paid to walnut growers to ensure that the company hit quarterly targets for earnings per share. SEC v. Diamond Foods, Inc., No. 14-122 (N.D. Cal., order entered February 2, 2015). According to SEC, Diamond falsely reported some of its payments to walnut growers as advances for crops not yet delivered to exclude the amounts from year-end financial statements, and after an investigation into the company’s accounting practices began, Neil allegedly gave independent auditors false and incomplete information about the payment scheme. Diamond and its former CEO, Michael Mendes, reached a deal with SEC in January 2014 to pay a $125,000 penalty along with returning more than $4 million that Mendes had received in bonuses…
A California federal court has dismissed two claims and allowed four to continue in a putative class action alleging that (i) Salov North America Corp. mislabeled its Filippo Berio olive oils as “Imported from Italy” despite using olives grown and pressed in other countries and (ii) its extra virgin olive oils do not meet the high standards required to qualify as “extra virgin,” partly due to inefficient bottling and transportation. Kumar v. Salov North Am. Corp., No. 14-2411 (N.D. Cal., order entered February 3, 2015). The court first assessed Salov’s challenge to the plaintiff’s standing and found that it could not, as a matter of law, determine that a reasonable consumer would not interpret “Imported from Italy” to mean that the product was made exclusively of Italian olives. Salov also asserted that the plaintiff must have seen the statement on the label that informed consumers that the product was “Packed…
A California federal court has granted plaintiffs’ motion to vacate the judgment and reopened a proposed class action against Attune Foods Inc., finding that the delay in guidance from the U.S. Food and Drug Administration (FDA) on whether “sugar” is the “common or usual name” for “evaporated cane juice” (ECJ), an ingredient that appears on Attune’s labels, could unfairly disadvantage the plaintiffs’ case. Swearingen v. Attune Foods Inc., No. 13-4541 (U.S. Dist. Ct., N.D. Cal., Oakland Div., order entered January 28, 2015). Citing the primary jurisdiction doctrine, the court had dismissed the case without prejudice in May 2014 to await FDA guidance after the agency reopened the comment period in March of that year to determine whether sugar and ECJ are materially different substances. After the plaintiffs sought relief from the judgment, the court has now determined that FDA’s delay could unfairly disadvantage the plaintiffs if the statute of limitations prohibits…
The office of California Attorney General Kamala Harris will appeal the January 2015 decision overturning the state’s ban on foie gras, according to a notice of appeal filed in California federal court. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12 5735 (U.S. Dist. Ct., C.D. Cal., notice of appeal filed February 4, 2015). The prohibition was found to impose “[m]arking, labeling, packaging, or ingredient requirements” that interfered with the free flow of poultry products in violation of the federal Poultry Products Inspection Act. The AG’s 1-page notice of appeal cited no arguments supporting its challenge. Additional details about the district court decision appear in Issue 550 of this Update. Issue 554
