The U.S. Supreme Court (SCOTUS) has denied a petition seeking review of a Ninth Circuit Court of Appeals ruling upholding a California law prohibiting the sale of commodities, such as foie gras, produced by “force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 13-1313 (U.S., certiorari denied October 14, 2014). Details about the Ninth Circuit decision appear in Issue 497 of this Update. Among other matters, the Ninth Circuit had found that a number of the issues presented by the plaintiffs were premature because they had appealed the denial of a motion for preliminary injunction. The question that out-of-state fois gras producers presented to SCOTUS was “[w]hether the Commerce Clause allows California to impose a complete ban on the sale of wholesome, USDA-approved poultry products from other States and countries—in this case, foie…
Tag Archives California
California Governor Jerry Brown (D) recently signed a bill (A.B. 504) extending the prohibition of spawning, incubating or cultivating of genetically engineered (GE) salmon in the Pacific Ocean to all state waters. Hatchery production and stocking of transgenic fish is also prohibited. The legislation was sponsored by Assemblymember Wesley Chesbro (D-Arcata), who asserts that the specter of “frankenfish” escaping into California waters “could destroy our native salmonid populations through interbreeding, competition for food and the introduction of parasites and disease.” The new law also restricts medical or scientific research to that performed by “accredited California academic institutions or private entities for research only and not for commercial production,” provided such activities are conducted in closed systems that reduce the “risk of escape of transgenic finfish species and any potential disease they may transmit.” See Press Release of Assemblymember Wesley Chesbro, September 29, 2014. Issue 541
A California federal court has granted in part and denied in part a motion for summary judgment in a lawsuit alleging that Mott’s violated the U.S. Food and Drug Administration’s (FDA’s) and California’s Sherman Law standards on the use of “no sugar added” on food packaging. Rahman v. Mott’s LLP, No. 13-3482 (N.D. Cal., order entered October 14, 2014). The plaintiff alleged that Mott’s 100% Apple Juice included a “no sugar added” label but failed to follow the additional FDA regulations requiring “a statement that the food is not ‘low calorie’ or ‘calorie reduced’ (unless the food meets the requirement for a ‘low’ or ‘reduced calorie’ food) and that directs consumers’ attention to the nutrition panel for further information on sugar and calorie content.” Mott’s moved for summary judgment on four grounds: the plaintiff (i) did not suffer damages as a result of purchasing the apple juice, (ii) lacked standing…
A California federal court has preliminarily approved a settlement in a case alleging that Ghirardelli failed to include white chocolate, cocoa or cocoa butter in its white chocolate chips. Miller v. Ghirardelli Chocolate Co., No. 12-4936 (U.S. Dist. Ct., N.D. Cal., San Francisco Div., order entered October 2, 2014). Additional details about the settlement appear in Issue 535 of this Update, and further information about the litigation appears in Issues 465 and 479 of this Update. Under the agreement, Ghirardelli will pay $5.25 million to a common fund to distribute to class members. Notices to potential class members will appear in People magazine and the Oakland Tribune and on several popular websites, and any leftover balance in the settlement fund will be divided among several consumer and food organizations, including Consumers Union and Florida State University’s Food & Nutrition Science Department. A fairness hearing is scheduled for February 2015. …
A California federal court has granted Duke University’s motion to dismiss in a lawsuit filed by John Wayne Enterprises seeking a declaratory judgment that its registration and use of Duke trademarks are not likely to cause consumer confusion and do not violate or dilute the school’s trademarks. John Wayne Enterprises, LLC v. Duke Univ., No. 14-1020 (C.D. Cal., order entered September 30, 2014). The case was dismissed on procedural grounds after the court found that it did not have jurisdiction over the North Carolina-based university. Additional information about the lawsuit appears in Issue 530 of this Update. Issue 539
A California federal court has certified a statewide liability class in a lawsuit accusing Jamba Juice of labeling its home smoothie kits as “all natural” despite containing five synthetic ingredients—ascorbic acid, xanthan gum, steviol glycosides, modified corn starch, and gelatin—but it refused to certify the class for damages. Lilly v. Jamba Juice Co., No. 13-2998 (N.D. Cal., order entered September 18, 2014). The court dismissed Jamba Juice’s argument that the class was unascertainable because no purchase records existed for the kits, finding that such an approach would “have significant negative ramifications for the ability to obtain redress for consumer injuries.” The court agreed, however, with Jamba Juice’s proposition that the plaintiffs could not provide a plausible class-wide damages model, because they did not show “any evidence, expert reports, or even detailed explanation about how those damages models can be fairly determined or at least estimated.” See Bloomberg BNA, September 19, 2014.…
The San Francisco Board of Supervisors and Berkeley City Council last week each passed resolutions urging federal lawmakers to pass the Preservation of Antibiotics for Medical Treatment Act of 2013 (H.R. 1150) and the Preventing Antibiotic Resistance Act of 2013 (S. 1256). “Twenty-three thousand people die each year in the United States from antibiotic-resistant infections,” a Food & Watch representative was quoted as saying. “The public and elected leaders must take action to keep antibiotics working for people.” The San Francisco resolution also asks the city’s Department of the Environment to consider reducing purchases of agricultural products derived from animals using non-therapeutic antibiotics and residents of the city and county of San Francisco to reduce or eliminate their consumption of such products. See Food & Water Watch News Release, September 15, 2014.
A California federal court has approved a settlement in a case accusing Guayaki Sustainable Rainforest Products Inc. of misleading its customers by listing “organic evaporated cane juice” (ECJ) as an ingredient of its yerba mate products. Cowan v. Guayaki Sustainable Rainforest Prods. Inc., No. 14-1248 (U.S. Dist. Ct., N.D. Cal., order entered September 16, 2014). The terms of the settlement agreement are confidential. The plaintiff’s suit was part of a deluge of putative class actions alleging product mislabeling because the companies included ECJ on their ingredient lists rather than, plaintiffs have argued, the more common and accepted term for the substance, sugar. Many of these cases have been dismissed without prejudice or stayed while courts and parties await promised guidance on the issue from the U.S. Food and Drug Administration. Additional information on recent cases appears in Issues 534, 532 and 530 of this Update. Issue 538
The California Environmental Protection Agency’s (Cal/EPA’s) Office of Environmental Health Hazard Assessment (OEHHA) is requesting public input for ways of improving the implementing regulations of the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). More specifically, the agency invites stakeholders’ ideas about (i) alternative risk levels for chemicals in foods; (ii) revisions to the Naturally Occurring regulation; (iii) revisions and a restructuring of the Safe Use Determination process; (iv) clarification of the regulatory provisions on averaging exposures; (v) chemicals for priority consideration in the development of or update of Safe Harbor levels; (vi) new interpretive guidance; and (vii) the use of data on postnatal developmental exposures. OEHHA must receive comments and supporting documentation by 5 p.m. on November 17, 2014. Issue 538
A California state court has adjusted the language in the soft drink tax on the November 2014 ballot by replacing “high-calorie, sugary drink” with “sugar-sweetened beverages” to clarify the proposed tax and to conform with election codes. Johnson v. Numainville, No. RG14786763 (Cal. Super. Ct., Alameda Cty., order entered September 2, 2014). Agreeing with the two Berkeley residents who filed the lawsuit, the court found that “the ballot question here asking whether a tax should be imposed on ‘high-calorie, sugary drinks’ is likewise a form of advocacy and therefore not impartial. This phrase suggests that the tax will be limited to certain beverages that contain more than the average calories and too much sugar; in other words, beverages that most people would find to be unhealthy.” The court also found issue with the City Attorney’s Impartial Analysis of the measure, which described it as a tax on “high-calorie, low nutrition”…
