According to press reports, New York Assemblyman Karim Camara (D-Brooklyn) announced this week that he intends to propose legislation requiring sugar-sweetened beverages (SSBs) to carry labels cautioning that their consumption contributes to “obesity, diabetes and tooth decay.” He introduced a similar bill (A10172) in August 2014, but no action was apparently taken on that initiative. “We can’t sit back and pretend that sugary drinks aren’t harmful to people,” Camara was quoted as saying. “The research is clear—too much sugar leads to health problems such as obesity and diabetes.” A California Assembly committee defeated like-minded legislation earlier in 2014. More details about that proposal appear in Issue 527 of this Update. See The New York Post, November 13, 2014. Issue 545
Tag Archives California
A California resident has filed a putative nationwide class action in federal court against Olé Mexican Foods, Inc., alleging that its Xtreme Wellness® whole-wheat tortillas contain partially hydrogenated vegetable oil, “banned in many parts of the world due to its artificial trans fat content,” thus belying the health and wellness representations the company uses on product labels. Guttmann v. Olé Mexican Foods, Inc., No. 14-4845 (N.D. Cal., filed October 31, 2014). The plaintiff alleges that artificial trans fat causes cardiovascular disease; Type 2 diabetes; breast, prostate and colorectal cancer; Alzheimer’s disease and cognitive decline; and damage to vital organs. He claims that he purchased one package each month for two years at a higher price than comparable products relying on package labeling stating “Healthy Life Style,” “Better Choice for Your Health,” “Whole Wheat,” and “High Source of Fiber and Protein.” According to the complaint, because the product contains trans fat, small amounts…
The Center for Food Safety and two other public interest organizations have filed a lawsuit against the U.S. Food and Drug Administration (FDA) seeking to overturn its approval of 11 animal drugs containing ractopamine hydrochloride on the ground that the agency failed to undertake the analysis purportedly required under the National Environmental Policy Act (NEPA) before approving them. Ctr. for Food Safety v. Hamburg, No. 14-4932 (N.D. Cal., filed November 6, 2014). The Center previously petitioned FDA to reduce the allowable levels of ractopamine, administered in animal feeds to boost growth and leanness in meat production, and to study its potential effects on human health and animal welfare. Information about the petition appears in Issue 466 of this Update. The complaint sets forth the effects these drugs allegedly have on livestock, like pigs, and on the environment. The plaintiffs claim that the company that makes ractopamine has acknowledged the “risk…
Reversing a lower-court decision, a California appeals court has ruled that state dram shop statutes—meant to protect some sellers of alcohol beverages from liability for injuries related to the beverages’ consumption—do not provide immunity for City Brewing Co. in a lawsuit alleging that the company was negligent in producing Four Loko. Fiorini v. City Brewing Co., No. F067046 (Cal. Ct. App., 5th Dist., order entered November 6, 2014). After drinking two 23.5-ounce cans of Four Loko, the plaintiff’s son was shot to death by police in October 2010. The plaintiff alleged that City Brewing, which brewed, bottled and labeled Four Loko, was liable for negligence for producing an alcohol beverage in a nonresealable can apparently containing alcohol “equivalent to five or six 12-ounce cans of beer” and “as much caffeine as two cups of coffee” because “combining alcohol, a depressant, with caffeine and other stimulants created a product that had unreasonably…
A California federal court has granted a motion for reconsideration in a case alleging that Wallaby Yogurt Co. includes “evaporated cane juice” (ECJ) on its ingredient lists rather than what plaintiffs allege is the more common name, sugar. Morgan v. Wallaby Yogurt Co., No. 13-296 (N.D. Cal, order entered November 5, 2014). Wallaby had moved for reconsideration of prior orders allowing the case to proceed. The text-only docket indicates that the motion for reconsideration has been granted and the case stayed, with a written order to follow. The stay follows a series of similar actions in other cases after the U.S. Food and Drug Administration (FDA) announced in March 2014 that it would reconsider its 2009 draft guidance discouraging use of the term. In two similar putative class actions, courts have extended stays originally imposed in May 2014 because FDA has not yet issued further guidance. Figy v. Lifeway Foods, No.…
A federal court in California has decertified a damages class in litigation alleging that Dole Packaged Foods, LLC misleads consumers by labeling 10 of its fruit products as “All Natural Fruit” because they contain allegedly synthetic ingredients ascorbic acid and citric acid. Brazil v. Dole Packaged Foods, LLC, No. 12-1831 (N.D. Cal., order entered November 6, 2014). The court found flaws in the regression model that the plaintiff’s expert (Oral Capps) used to determine the price premium attributable to the company’s use of the “All Natural Fruit” label statements, finding that the model “does not sufficiently isolate the price impact” of the labeling statement. The court disagreed with Dole that the expert performed a “price” regression rather than a “sales” regression and thus “measured the wrong thing.” According to the court, while the initially proposed analysis differed from the one actually carried out, given that the expert had initially proposed…
Voters in Berkeley, California, have passed a 1-cent per-ounce tax on sugar-sweetened beverages (SSBs) and the added-calorie sweeteners used to make them. Revised by court order to reference “sugar-sweetened beverages” as opposed to “high-calorie, sugary drinks,” the ballot measure garnered 75 percent approval to make Berkeley the first city in the nation to adopt a soda tax. The new tax will apparently cover (i) SSBs distributed to stores and restaurants and (ii) sweeteners distributed to restaurants and stores “where they are used to make sugar-sweetened beverages for customers.” Exempted from taxation are sweeteners distributed to stores for direct sale to consumers as well as milk-based beverages, baby formula, alcoholic beverages, medical formulations, and fruit and vegetable juices that do not contain added-calorie sweeteners. Under the new rules, added-calorie sweeteners include sucrose, fructose, glucose, and high-fructose corn syrup, but not “natural, concentrated, or reconstituted fruit or vegetable juice or any combination thereof.”…
Diamond Foods, Inc. has agreed to settle the consumer fraud class action suits filed by plaintiffs in California and Florida alleging that the company falsely labels its Kettle Brand® chip products as “All Natural,” when they contain artificial, synthetic or genetically modified ingredients, or as “Reduced Fat” while referencing non-comparable foods. Klacko v. Diamond Foods, Inc., No. 14-80005 (S.D. Fla., motion for preliminary approval filed October 22, 2014). Details about one of two similar California lawsuits appear in Issue 510 of this Update. Under the agreement, the company would establish a $2.75-million fund for class member claims, pay the costs of class notice and administration up to $300,000 and agree not to oppose attorney’s fees, expenses and costs of $775,000. Class members with proof of purchase would be able to recover up to $20, representing $1.00 for up to 20 purchases; those without proof of purchase would recover up to $10.…
A California state court has approved the settlement of a putative class action alleging that Barney’s Worldwide Inc., owner of the Barney’s Beanery restaurant chain, falsely advertised its beef as Kobe beef when a U.S. Department of Agriculture (USDA) ban on the import of beef from Kobe, Japan, was in effect. Nalbantian v. Barney’s Worldwide Inc., No. BC493145 (Cal. Super. Ct., Cty. of Los Angeles, approval entered October 23, 2014). The plaintiff had alleged that Barney’s advertised its menu as containing Kobe beef—which the plaintiff said indicates that the beef comes from Wagyu-breed cattle raised and slaughtered in Kobe, Japan—despite a USDA ban imposed due to fears of disease in May 2010. Under the settlement, the restaurant chain will use “Kobe beef” on its menu only if it is listed as “American Kobe beef” and will pay up to $220,000 in $10 gift certificates to any class member who submits a claim…
A California federal court has rejected in part and granted in part Total Sweeteners Inc.’s motion for summary judgment in a case alleging that the molasses supplier sold American Licorice Co. shipments tainted with lead that American Licorice then used to create Red Vines black licorice candy, resulting in a costly recall. Am. Licorice Co. v. Total Sweeteners Inc., No. 13-1929 (N.D. Cal., order entered October 22, 2014). Additional details about the case appear in Issue 494 of this Update. American Licorice argued that, under the sales contract, Total Sweeteners was obliged to provide molasses that complied with state and federal regulations; Total Sweeteners asserted that American Licorice knew that molasses has some naturally occurring lead and should have tested for it upon receipt. The court focused on the contract, agreeing with Total Sweeteners that the sales contract between the parties, and not a subsequent purchase order with terms favorable…
