The Wisconsin Supreme Court has decided which of the parties sued over an E. coli outbreak that sickened dozens of Sizzler Steak House patrons in 2000 and caused the death of a 3-year-old are liable for consequential damages, indemnity and costs under various supply chain and insurance contracts. Kriefall v. Sizzler USA Franchise, Inc., Nos. 2009AP1212 & 2010AP491 (Wis., decided June 29, 2012). Among other matters, the court ruled that Sizzler was entitled to (i) recover consequential damages for the meat supplier’s breach of implied warranties despite limiting language in the continuing guaranty provision of their contract, and (ii) indemnity from the meat supplier for Sizzler’s advance partial payment to the family of the deceased child “because the payment was not voluntary and the jury found that Sizzler was zero percent liable for the E. coli contamination.” The court also ruled that Sizzler could not recover its attorney’s fees despite a jury finding…
Tag Archives California
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) is seeking public comments on its proposal to establish a Proposition 65 maximum allowable dose level for sulfur dioxide of 220 micrograms per day. Comments should be submitted by August 20, 2012. Requests for a public hearing must be made no later than August 6. Sulfur dioxide preserves the color and flavor of dried, light-colored fruits, such as golden raisins and dried apricots, peaches, apples, pineapple, papaya, and mango, and acts as an antimicrobial agent. According to OEHHA’s draft interpretive guideline, a warning for exposure to sulfur dioxide from consumption of dried fruit is not required under Proposition 65 because reasonably anticipated rates of exposure “will be below the proposed Maximum Allowable Dose Level.” Sulfur dioxide was added to the list of chemicals known to the state to cause reproductive toxicity in July 2011; the particular type of toxicity found was…
A California resident has filed a putative class action against Ralphs Grocery Co. alleging that it breached its promise not to share the personal information that shoppers must provide to obtain a “Ralphs rewards Card”; only cardholders may purportedly take advantage of advertised store discounts. Heller v. Ralphs Grocery Co., No. BC486035 (Cal. Super. Ct., Los Angeles Cty., filed June 6, 2012). He contends that he would not have shopped at the grocery stores or applied for a rewards card “if not for Defendant’s misrepresentation and/or nondisclosure of the fact that it was selling and/or sharing its customers’ personal identification information.” According to the complaint, the defendant shares customer information with Kroger and with dunnhumby, a company that allegedly “performs data mining services for more than 350 million people in 25 countries on behalf of retailers” and “uses personal identification information and data from purchase transactions gleaned from the Ralph’s reward Card…
Seeking to represent a statewide class of product purchasers, a California resident has filed a putative class action against Costco, alleging that the company falsely sells its Kirkland Signature Kettle Brand Potato Chips®, which purportedly contain “more than 13 grams of fat per 50 grams,” with a “0 Trans Fat” label. Thomas v. Costco Wholesale Corp., No. 12-2908 (N.D. Cal., filed June 5, 2012). Citing 21 C.F.R. § 101.13(h), plaintiff Karen Thomas contends that the defendant is “prohibited from making the unqualified nutrient claims of ‘0 grams Trans Fat’ on its food products if they contain fat in excess of 13 grams, saturated fat in excess of 4 grams, cholesterol in excess of 60 milligrams, or sodium in excess of 480 mg per 50 grams, unless the product also displays a disclosure statement that informs consumers of the product’s fat, saturated fat and sodium levels.” She alleges that the product…
On remand from the U.S. Supreme Court, the Ninth Circuit Court of Appeals has issued an order which reinstates a district court ruling that a California law regulating swine slaughterhouses and nonambulatory animals was preempted by federal law. Nat’l Meat Ass’n v. Harris, Nos. 09-15483 and -15486 (9th Cir., order entered June 8, 2012). Additional details about the case and the unanimous U.S. Supreme Court ruling appear in Issue 424 of this Update.
California Secretary of State Debra Bowen (D) has reportedly certified that enough valid signatures were gathered to allow a genetically modified organism (GMO) food-labeling initiative on the state ballot during the November 6, 2012, general election. In May, the Committee for the Right to Know obtained 971,126 signatures, of which 555,236 had to be proven valid. The ballot initiative, aka California Right to Know Genetically Modified Food Act, was covered in Issue 438 in this Update. “We’re thrilled that Californians will have the opportunity this November to vote for the right to know what’s in our food,” said Stacy Malkan, a committee spokesperson. “It’s about our fundamental right to make informed choices about the food we eat and feed our families.” See California Secretary of State Debra Bowen Press Release, June 11, 2012; Law360, June 12, 2012.
The Sixth Circuit Court of Appeals has determined that the Roskam Baking Co. did not infringe a trademark by using the term “Texas Toast” in selling its packaged croutons. T. Marzetti Co. v. Roskam Baking Co., No. 10-3784 (6th Cir., decided May 25, 2012). Marzetti apparently began using the Texas Toast mark for its frozen garlic bread in 1995 and then adopted the term for use with a crouton product sold in 2007. The company attempted to register the mark in 2009, but the applications were initially denied “because of the potential likelihood of confusion with the mark Texas toast for bakery goods.” Thereafter, they were approved for publication as, “at a minimum, suggestive.” The defendant filed an opposition to the trademarks in 2010, and Marzetti, learning about the company’s Texas Toast croutons, filed this trademark infringement action. The Sixth Circuit agreed with the district court that the mark is not…
A California resident has filed a putative class action against Starbucks Corp. alleging that the company deceived consumers by failing to disclose that some of its products were made with cochineal extract, a common food-coloring ingredient made from crushed insects. Anderson v. Starbucks Corp., No. BC485438 (Cal. Super. Ct., Los Angeles Cty., filed May 25, 2012). Seeking to represent a nationwide class and statewide subclass of consumers, the plaintiff claims that she and the class members, had they known about the company’s use of the ingredient, would not have purchased the products for a number of reasons, including objections to consuming animal products, allergic responses to the ingredient or “sheer disgust.” Alleging violations of the California Unfair Business Practices Act and False Advertising Act, unjust enrichment, fraud by omission/concealment, and violation of California’s Consumers Legal Remedies Act, the plaintiff seeks disgorgement, restitution, compensatory and punitive damages, payment to a cy pres fund,…
The California Office of Environmental Health Hazard Assessment (OEHHA) has issued interpretive guidance on chlorothalonil in tomato products, concluding that the average consumer does not eat enough fresh tomatoes or tomato products to exceed the No Significant Risk Level (NSRL) for the pesticide. According to OEHHA, a NSRL for chlorothalonil of 41 micrograms (µg) per day will take effect on June 15, 2012, at which point businesses causing exposures in excess of the NSRL must comply with Proposition 65 (Prop. 65) warning requirements. OEHHA evidently based its upper-bound limit estimates on USDA pesticide residue surveys taken in 2003, 2004, 2007, and 2008, as well as National Health and Nutritional Examination Survey data on tomato consumption. “Consumption of chlorothalonil residues by the average consumer of tomatoes does not result in exposures that exceed the Proposition 65 NSRL of 41 µg/day for the chemical, where the residue levels in tomatoes are at…
The California Agricultural Labor Relations Board has filed a petition for injunctive relief against a Ventura County strawberry farming operation alleging unfair labor practices and seeking to stop the respondent from interfering with employees’ free exercise of rights under the labor code. State v. Montalvo Farms, LLC, No. 56-2012-00416985 (Cal. Super. Ct., Ventura Cty., filed May 9, 2012). According to the petition, the farm hires Mixteco farmworkers, most of whom speak neither English nor Spanish. Due to language constraints, these workers allegedly endure “worse working conditions than other agricultural workers, including pervasive undercounting of their strawberry boxes picked, supervisors who charge for rides to work, injuries on the job that are ignored, and outright discrimination due to their inability to speak Spanish fluently.” One Mixteco worker, who is fluent in Mixteco and Spanish, apparently worked at the farm for several years and became a spokesperson for the Mixteco workers. He…
