A federal court in California has dismissed several of the claims in a putative nationwide class action alleging that Bromley Tea Co. makes unlawful and deceptive health-related claims on packaging labels and on its website for the company’s green and black teas. Clancy v. The Bromley Tea Co., No. 12-3003 (N.D. Cal., order entered August 9, 2013). The court rejected the defendant’s challenge to the plaintiff’s standing to assert claims as to products he had not purchased or statements he did not see before buying the products he did purchase. According to the court, “The named plaintiff has standing to assert claims relative to the products he purchased. He does not claim to have standing to assert claims related to other products. What he does claim is that he may be a potential representative of a class of people who have such standing. He may or may not be able…
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The Center for Food Safety has filed its reply to the Food and Drug Administration’s (FDA’s) request that a federal court in California reconsider the Food Safety Modernization Act implementation rulemaking deadlines it established for the agency. Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., filed August 2, 2013). Additional information about FDA’s motion appears in Issue 492 of this Update. While the center argues that FDA is attempting to re-litigate issues the court has already decided, it does not oppose a one-time, 60-day deadline extension for the food transportation rule. Meanwhile, FDA has issued notices extending until November 15, 2013, the comment periods on its proposed “Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food” and “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption.” According to FDA, the extension will allow stakeholders to consider the interrelationships between…
A federal court in California has determined that EAS Consulting Group LLC and one of its employees, a former acting director in the Food and Drug Administration’s Office of Food Labeling, must be barred from discussing issues with plaintiffs’ counsel in litigation against Chobani, Inc. and are disqualified as experts in the case, finding that the regulatory consulting company improperly agreed to consult with plaintiffs’ counsel in consumer fraud litigation against food companies after discussing confidential litigation strategy and issues with Chobani’s defense counsel. Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal, San Jose Div., order entered August 2, 2013). Details about the litigation appear in Issue 491 of this Update. So ruling, the court denied Chobani’s request to disqualify plaintiffs’ counsel unless they communicate further with EAS about the issues in this putative class action without a waiver from Chobani. According to the court, while confidential information about the…
A federal court in California has dismissed with prejudice the breach of warranty claims made by a putative class as to purportedly “misbranded food products” sold by 7-Eleven, but dismissed the remaining consumer fraud claims without prejudice to allow the plaintiff to amend the complaint to meet the stringent pleading requirements for fraud-based allegations. Bishop v. 7-Eleven, Inc., No. 12-2621 (N.D. Cal., order entered August 5, 2013). While the plaintiff defined “misbranded food products” as pertaining to potato chips, pretzels and other foods labeled “0 grams Trans Fat,” “No Cholesterol,” “All Natural,” “Fresh to Go,” “guaranteed fresh,” or “Fresh,” as well as products “sold in oversized slack filled container,” the court determined that he failed to “provide a clear and particular account of the allegedly fraudulent, deceptive, misrepresentative, or otherwise unlawful statements” and failed to “unambiguously specify the particular products that have violated particular labeling requirements, the allegedly unlawful representations that…
A federal court in California has granted motions to certify California classes of consumers in two separate consumer-fraud lawsuits involving the “all natural” claims on products made by Bear Naked, Inc. and the Kashi Co. Thurston v. Bear Naked, Inc., No. 11-2890, Astiana v. Kashi Co., No. 11-1967 (S.D. Cal., orders entered July 30, 2013). Details about the latter suit, a consolidated matter, appear under the plaintiff’s name Bates in Issue 408 of this Update. The court agreed with Bear Naked that the named plaintiffs failed to sufficiently show that “natural” has a uniform definition among class members, that a sufficient number of class members would have relied to their detriment on the representation or that the company’s “representation of natural in light of the presence of the challenged ingredients would be considered to be a material falsehood by class members.” Still, the court determined that the plaintiff made a sufficient showing of…
According to a news source, upscale Rodeo Drive sushi restaurant Urasawa has been sued by former employees who claim they were forbidden from taking breaks and were not paid the overtime they worked. Apparently, a California Labor Department investigation has confirmed the complaints targeting chef and owner, Hiroyuki Urasawa, whose menu includes dishes served with caviar and 24-karat gold flakes and can cost a couple in excess of $1,000. Among those seeking back wages is Heriberto Zamora, who was reportedly forced to buy his own $700 set of knives when he was earning just $9 per hour. Zamora claims he was fired nine hours into his shift when he asked to go home with a fever and cough. See The New York Times, July 20, 2013.
To settle litigation filed in 2007 by environmental and union interests, California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has agreed to a number of actions that would remove certain steps from the Proposition 65 (Prop. 65) chemical-listing process that would accelerate the listings. Sierra Club v. Brown, No. RG07356881 (Cal. Super. Ct., settlement endorsed July 3, 2013). The agreement will affect OEHHA’s authoritative bodies listings as to specific chemicals and its Carcinogen Identification Committee listings. Not affected by the agreement, and yet to be determined by the court, is the plaintiffs’ motion for judgment on the pleadings requiring OEHHA to list all International Agency for Research on Cancer (IARC) Group 3 chemicals for which IARC finds sufficient evidence of carcinogenicity in animals. According to a news source, the court will hold a hearing to consider whether to approve the agreement on August 15, 2013. See InsideEPA.com, July 25,…
The Environmental Research Center, which frequently files lawsuits to enforce California’s Safe Drinking Water and Toxic Enforcement Act f 986 (Prop. 65), has sued Clif Bar & Co., alleging that it fails to warn consumers that its protein, energy, electrolyte, and snack bars contain lead, a substance known to the state to cause cancer, birth defects and other reproductive harm. Envtl. Research Ctr. v. Clif Bar & Co., No. 13 32935 (Cal. Super. Ct., San Francisco Cty., filed July 18, 2013). The plaintiff seeks injunctive relief and civil penalties of $2,500 per day for each violation of Prop. 65.
The U.S. Food and Drug Administration (FDA) has filed a motion for reconsideration or stay of a court order establishing rulemaking deadlines under the Food Safety Modernization Act. Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., Oakland Div., motion filed July 19, 2013). More information about the litigation appears in Issues 481, 487 and 489 of this Update. Scheduled to be heard on August 28, 2013, the motion contends that two of the seven rulemakings at issue, the sanitary transport rule and the intentional adulteration rule, pose challenges that preclude their issuance by the court’s deadline. Requesting that the court reconsider its order largely on the basis of arguments already rejected, the agency also asks the court to stay the order pending the Solicitor General’s determination whether to authorize an appeal and, if an appeal is authorized, while the appeal is pending.
A California court has tentatively determined, following a 10-day bench trial, that the levels of lead in canned or packaged fruit, vegetable and grape drink products, or baby foods, are below the regulatory “safe harbor” exposure level under Proposition 65 (Prop. 65) and therefore that the companies which make them are not required to provide Prop. 65 warnings to consumers. Envtl. Law Found. v. Beech-Nut Corp., No. RG11 597384 (Cal. Super. Ct., Alameda Cty., tentative decision entered July 15, 2013). Because few Prop. 65 cases go to trial, the court was faced with a number of questions of first impression, primary among them application of the “naturally occurring” defense. The parties did not dispute the presence of lead in the products or that it has been identified as a known carcinogen and reproductive toxin under Prop. 65. Beech-Nut Corp., the original defendant, was joined at trial by a number of other…
