The Animal Legal Defense Fund (ALDF) and Compassion Over Killing have reportedly filed a complaint in a California federal court against the Food and Drug Administration, U.S. Department of Agriculture and Federal Trade Commission claiming that the agencies have failed to regulate animal-welfare labeling on egg cartons. According to ALDF, rulemaking petitions were filed in 2006 and 2007 asking for egg production methods to be fully disclosed on every carton of eggs sold in the United States. The agencies have not only allegedly failed to take action on these requests, they have also apparently failed to take action against “the often-misleading claims and deceptive imagery widely found on egg cartons.” The plaintiffs seek a court order requiring the agencies to adopt rules that would mandate that producers clearly label their egg cartons with egg production methods, including “Eggs from Caged Hens.” See ALDF News Release, March 28, 2013.
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A federal court in California has dismissed with prejudice a complaint filed by groups concerned about ducks force-fed to produce foie gras against the U.S. Department of Agriculture (USDA) and its Food Safety and Inspection Service (FSIS), seeking to compel FSIS to ban force-fed foie gras from the human food supply as adulterated and diseased. Animal League Def. Fund v. USDA, No. 12-4028 (U.S. Dist. Ct., C.D. Cal., decided March 22, 2013). FSIS denied a petition to take such action, and the plaintiffs filed the lawsuit to challenge the legality of that denial under the Administrative Procedure Act. According to the court, while an agency’s denial of a petition for rulemaking can be challenged in court, the plaintiffs here did not ask FSIS to promulgate a new rule. “Though titled ‘PETITION FOR RULEMAKING,’ Plaintiffs’ request seeks to ban force-fed foie gras under existing law and regulations: it is not a…
A sugar-sweetened beverage tax proposal (S.B. 622) introduced in February 2013 by Sen. Bill Monning (D) and co-sponsored by the California Center for Public Health Advocacy, is scheduled for public hearing on April 24, 2013. The proposed legislation would impose a 1 cent per fluid ounce tax on sugar-sweetened beverages to finance a Children’s Health Promotion Fund that would pay for a statewide childhood obesity prevention program and apply to all sugar-sweetened beverage distributors whether their products are bottled or sold as concentrate. “This bill will combat the obesity crisis and ensure that our children—and future generations of Californians—are not doomed to a shorter life expectancy and can instead live longer, healthier lives,” Monning has been quoted as saying. Details about S.B. 622 appear in Issue 473 of this Update. See Los Angeles Times, February 26, 2013.
Beekeepers, environmentalists and advocacy organizations have filed an action for declaratory and injunctive relief against the U.S. Environmental Protection Agency (EPA), claiming that the agency has failed to take any regulatory action on pesticide products containing the active ingredients clothianidin and thiamethoxam in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Endangered Species Act (ESA) and Administrative Procedure Act. Ellis v. EPA, No. 13-1266 (N.D. Cal., filed March 21, 2013). According to the complaint, “In a vast and extremely risky experiment, EPA has allowed over two million pounds of clothianidin and thiamethoxam to be used annually on more than 100 million acres and on dozens of different plant corps without adhering to existing procedural frameworks and with no adequate risk assessments in place.” The plaintiffs allege that this inaction has “been a major factor in excessive honey bee mortality and the decline of pollinator populations in the same…
A federal court in California has dismissed as preempted putative class claims filed against Target Corp. and Honeytree, Inc., alleging that they retail and manufacture honey products falsely advertised as “honey” or “pure honey” despite the absence of all pollen, an allegedly “defining characteristic of honey under applicable law.” Cardona v. Target Corp., No. 12-1148 (C.D. Cal., decided March 20, 2013). The court rejected the defendants’ challenge to the plaintiff’s standing, finding that she had sufficiently alleged an injury under Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011). But the court determined that the claims were preempted under the Nutrition Labeling and Education Act, agreeing with the defendants that the plaintiff “cannot plausibly allege that ‘pollen’ is a ‘characterizing ingredient’ of ‘honey,’ and that the ‘common and usual name’ of honey is honey, irrespective of pollen content.” According to the court, “the requirement that pollen-less honey be labeled as…
The company that makes the Muscle Milk® line of nutrition products has agreed to settle putative class claims that it misrepresented the products’ nutritional value. Delacruz v. CytoSport, Inc., No. 11-3532 (N.D. Cal., motion to approve settlement filed March 7, 2013). Details about the complaint appear in Issue 403 of this Update. A court order leaving just one issue in the case—an allegation that labeling claims of “healthy fats” in a Muscle Milk® product could deceive because a reasonable consumer would expect the product to contain unsaturated and not saturated fats—is summarized in Issue 436 of this Update. Under the proposed agreement, the company would pay the equivalent of $5.275 million for awards to the named plaintiff and class members, a cy pres award, injunctive relief, class notice and settlement administration costs, attorney’s fees and expenses, and products in kind. Claimants with proof of purchase would receive up to $30 each;…
The American Chemistry Council (ACC) has filed a complaint for declaratory and injunctive relief in a California state court against California EPA’s Office of Environmental Health Hazard Assessment (OEHHA), which in January 2013 proposed listing the chemical bisphenol A (BPA) as a reproductive toxicant under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). ACC v. OEHHA, No. ___ (Cal. Super. Ct., Sacramento Cty., filed March 1, 2013). Further details about OEHHA’s proposed BPA listing appear in Issue 468 of this Update. According to ACC, the agency’s scientific advisory panel, relying on the same document that OEHHA claims supports the listing—the National Toxicology Program’s Center for the Evaluation of Risks to Human Reproduction (NTP-CERHR) Monograph on the Potential Human Reproductive and Developmental Effects of Bisphenol A—unanimously concluded in July 2009 that BPA does not satisfy the criteria for listing developmental toxicants under Prop. 65. NTP-CERHR apparently concluded that “the…
Putative class actions have been filed against the Anheuser-Busch Cos. (AB) in federal courts in California, New Jersey and Pennsylvania, alleging that “consumers receive watered down beer containing less alcohol than is stated on the labels of AB’s products.” Giampaoli v. Anheuser-Busch Cos., LLC, No. 13-0828 (N.D. Cal., filed February 22, 2013); Wilson v. Anheuser-Busch Cos., LLC, No. 13-1122 (D.N.J., filed February 25, 2013); Greenberg v. Anheuser-Busch Cos., LLC, No. 13-1016 (E.D. Pa., filed February 25, 2013). Claiming that the company uses a technology enabling it to create precise alcohol levels in its beer products, each plaintiff seeks to certify a nationwide class of consumers who have purchased AB products such as Budweiser®, Bud Ice®, Bud Light Premium®, Michelob®, Michelob Ultra®, Hurricane High Gravity Lager®, King Cobra®, Busch Ice®, Natural Ice®, Black Crown®, and Bud Light Lime®. Alleging violations of consumer fraud laws and breach of state and federal warranty laws, the plaintiffs…
A California federal court has dismissed with prejudice claims filed against a yogurt maker and its parent company alleging that its Greek style yogurt product was misbranded under federal food regulations. Smith v. Cabot Creamery Coop., Inc., No. 12-4591 (N.D. Cal., decided February 25, 2013). The putative class plaintiffs alleged that the defendants used whey protein concentrate (WPC) and milk protein concentrate (MPC) as “filler material” to “thicken Cabot Greek and increase its protein content, instead of making Greek yogurt the ‘authentic’ way which involves filtering the liquid whey byproduct during the manufacturing process and keeping only the protein-rich solid portion.” They also alleged that the Food and Drug Administration (FDA) forbids the use of WPC and MPC. The defendants moved to dismiss the claims because they were premised on the alleged unlawful use of these ingredients, arguing that FDA allows WPC and MPC to be used lawfully “as optional ingredients…
A federal court in California has denied in part and granted in part the defendants’ motion to dismiss putative class claims that many of their food products are sold with labels that are unlawful and/or mislead consumers. Ivie v. Kraft Foods Global, Inc., No. 12-2554 (N.D. Cal., order entered February 25, 2013). Among the products are chewing gum, crackers, granola, fruit punch, cheese, nut mix, lemonade, stuffing mix, Jell-O®, and Easy Mac®. The labels at issue include the following statements: “natural,” “all natural,” “no artificial” colors/sweeteners/flavors/preservatives/ingredients, nutrient content, health claims, “sugar free,” “sugarless,” certain serving sizes, and “evaporated cane juice.” The allegations are also apparently based on products the named plaintiff did not purchase. The court determined that (i) the plaintiff sufficiently alleged an injury in fact by claiming she would not have purchased the products but for the alleged unlawful or misleading labels; (ii) the plaintiff cannot bring claims relating…
