California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has issued a notice of intent “to list emissions from high-temperature unrefined rapeseed oil as known to the State to cause cancer under the Safe Drinking Water and Toxic Enforcement Act of 1986” (Prop. 65). The proposal is based on the 2010 cancer identification by the International Agency for Research on Cancer (IARC) for “emissions created by frying food in unrefined rapeseed oil [commonly known as canola oil] heated past its boiling point.” IARC apparently found that these emissions “cause increased incidence of malignant tumors in female rats and combined malignant and benign tumors in both sexes of the mouse.” Comments are requested by December 16, 2013. See OEHHA News Release, November 15, 2013.
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California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has issued the tentative agenda for the December 5, 2013, meeting of its Carcinogen Identification Committee, which identifies chemicals for addition to the Proposition 65 list when they have been “clearly shown, through scientifically valid testing according to generally accepted principles, to cause cancer.” Under consideration will be butyl benzyl phthalate, a chemical used in food conveyor belts, and diisononyl phthalate, a plasticizer used in food-contact materials. The meeting will be webcast. See OEHHA News Release, November 14, 2013.
Wooden Nickel Music, which owns the copyright to the musical composition “Lady” and the sound recording embodying that composition by the group Styx, has filed an infringement action against Anheuser-Busch, LLC (AB) and a film company that purportedly created a video, currently on YouTube, including part of the recording. Wooden Nickel Music v. Anheuser-Busch, LLC, No. 13-8145 (C.D. Cal., filed November 4, 2013). The video, titled “Bud Light Commercial – The Elevator,” features a scheme in which young men cause an elevator with an attractive woman to stop between floors, so one of the men can share a beer and dance with the woman and, in the process, obtain a phone number. “Lady” is one of the songs played during the dance scene. According to the complaint, AB’s associate general counsel claims it has no record of the company “ever having seen the referenced work using Bud Light indicia” and…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has issued a tentative agenda for the November 21, 2013, meeting of its Developmental and Reproductive Toxicant Identification Committee (DART IC). The committee, which determines whether a chemical has been shown to cause reproductive toxicity, will be reconsidering whether certain chemicals listed via the Labor Code mechanism as known to the state to cause reproductive toxicity should remain listed. It will also consider how to tabulate data from epidemiological studies in hazard identification documents using a matrix that includes columns for study design and sample size, outcomes of interest, exposure dosages measures, routes of exposure, and confounders, among other matters. See OEHHA News Release Update, November 7, 2013. Issue 504
Telling counsel for Irwindale, California, that it was “asking for a very radical order on 24-hour notice,” a superior court has reportedly denied the city’s request that the maker of an Asian hot sauce cease production until purportedly aggressive odors can be reduced. Irwindale v. Huy Fong Foods, No. ___ (Cal. Super. Ct., Los Angeles Cty., filed October 28, 2013). A hearing on the city’s motion for preliminary injunction has been scheduled for November 22, 2013. According to news sources, Huy Fong Foods, which makes a popular Sriracha chili sauce, opened its Irwindale plant in 2012 when its Rosemead facility could not keep up with demand. Irwindale residents began complaining of pungent pepper and garlic fumes, burning eyes, irritated throats and headaches, especially when the company crushes the peppers. The city cited the company in October 2013 for violation of an ordinance forbidding noxious manufacturing emissions and filed suit after…
A federal court in California has given final approval to the settlement of a wage-and-hour class action against Starbucks Corp., including less than half of what plaintiffs’ counsel originally requested as attorney’s fees. York v. Starbucks Corp., No. 08-7919 (C.D. Cal., decided October 29, 2013). Starbucks apparently objected to the request for nearly $4.5 million, excluding nearly $250,000 in unreimbursed costs, characterizing it as “astonishing.” Thereafter, the parties agreed to attorney’s fees and costs of $1.9 million, and the court found the request reasonable. Under the agreement, 14,800 employees will receive payments of up to $900, for a total of $3 million, for alleged denial of statutorily mandated meal breaks and wage statements that failed to list the applicable overtime rate in violation of the California Labor Code. See Law360, October 28, 2013.
A federal court in California has significantly narrowed the consumer-fraud claims that may be asserted against Frito-Lay involving a number of its snack products labeled as “All Natural,” “0 Grams Trans Fat” and “No MSG.” Wilson v. Frito-Lay N. Am., Inc., No. 12-1586 (N.D. Cal., order entered October 24, 2013). All claims dismissed were with prejudice. The court dismissed claims based on products the plaintiffs did not purchase, because they failed to specify how or whether the 85 products added in their second amended complaint were substantially similar to the purchased products. The court also dismissed any claims based on statements the company made on its website. According to the court, the Food and Drug Administration (FDA) may have warned other companies about whether their Websites constituted labeling, but it had not done so as to the defendant’s products. The court also said, “The website address appears below Defendant’s physical address,…
Three days after the U.S. Food and Drug Administration (FDA) filed a motion for emergency stay pending appeal before the Ninth Circuit, the federal district court that had established November 30, 2013, as the deadline for the agency to publish notices of proposed rulemaking (NPRM) for specific food safety rules under the Food Safety Modernization Act denied the motion for stay pending appeal that FDA filed before it in September. Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., order entered October 21, 2013). Details about the emergency stay request based on delays attributable to the federal government shutdown appear in Issue 501 of this Update. According to the district court, FDA failed to show that it would be irreparably injured absent a stay. The court recognized that the agency was unprepared to issue a final rule on the intentional adulteration of food by the November 2013 deadline, “But…
A California resident has filed a putative nationwide class action against Lifeway Foods, Inc., alleging that many of its kefir, lassi and frozen yogurt products are misbranded under federal law and the state’s Sherman Law because they list as ingredients “Evaporated Cane Juice” or “Organic Cane Juice,” terms that purportedly render the products illegal. Figy v. Lifeway Foods, Inc., No. 13-4828 (N.D. Cal., San Francisco Div., filed October 17, 2013). The plaintiff avers that he and the class purchased these illegal products at a premium price and have sustained economic damages under the unlawful business acts and practices law. According to the complaint, the “unlawful sale of an illegal product is the only element necessary for the UCL claim. No reliance is necessary.” The plaintiff requests restitution, injunctive relief, corrective action, attorney’s fees, costs, and interest.
Los Angeles city council members Paul Koretz and Mitch O’Farrell have reportedly introduced a motion that would call on the city attorney to “prepare and present an ordinance which would prohibit the growth of genetically modified (GM) crops within city limits. Specifically, the ordinance should prohibit each [of] the following practices related to the growing of GM crops within city limits: the planting of GM seeds; the sale of GM seeds by vendors; the sale of any seeds that could potentially be contaminated by other genetically modified organisms (GMOs); the sale of GM fruit trees and plants.” The motion notes that 52 percent of “LA County residents voted in favor of Proposition 37, which would have required labeling on raw or processed genetically modified food products offered for sale to consumers.” It also raises questions about the safety of consuming GM foods and risks to the environment, including honey bee…
