Tag Archives California

California consumers have filed a putative class action against Van’s International Foods and retailers Whole Foods Market California, Inc., Trader Joe’s Co., and Costco Wholesale Co., alleging that Van’s frozen waffles did not accurately state the calorie and nutrient content throughout 2007 and into 2008. Hodes v. Van’s Int’l Foods, No. 09-01530 (C.D. Cal., filed March 4, 2009). According to the complaint, which seeks certification of a nationwide class, the sale in late 2006 of the company that made Van’s frozen waffles involved a change in personnel that required “reverse engineering the recipes for Van’s existing product lines.” That process allegedly resulted in findings that the nutritional information on the product packaging “contained numerous substantial inaccuracies.” The calorie, fat, sodium, carbohydrates, calcium, iron, and fiber content listed purportedly varied by 20 to 100 percent or more from the actual nutritional values. The plaintiffs allege that the company continued to “distribute…

California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) convened a conference call for stakeholders February 18, 2009, to discuss how to move forward with plans to require food retailers to warn the public about the presence of Proposition 65 (Prop. 65) chemicals in foods. OEHHA’s general objectives are to prepare regulatory language vetted by stakeholders and undertake formal notice-and-comment regulatory proceedings by June. The agency seeks assistance on drafting provisions about (i) manufacturer versus retailer responsibilities relating to warning information; (ii) structure, process and operation of a proposed information/warning clearinghouse; (iii) methods of delivering warnings; and (iv) establishing the content of warning messages. Volunteers are currently being solicited to join drafting groups, and initial drafts are expected to be completed by April 17. OEHHA will post the drafts on Cal/EPA’s Web site, and another stakeholders’ meeting will be held on April 23. Prop. 65 requires warnings about chemicals known to…

A federal court in California has denied a motion to dismiss putative class claims that Arizona Beverage Co. deceptively labels its products as “100% Natural,” “All Natural,” or “Natural,” despite using high-fructose corn syrup as an ingredient. Hitt v. Arizona Beverage Co., LLC, No. 08-809 (S.D. Cal., order entered February 4, 2009). The complaint also alleges that those beverages with fruit in the name are deceptively labeled because they “do not contain any substantial amount of the fruit named on the label.” The defendants sought to dismiss claims that they violated consumer fraud statutes by contending that they are expressly and impliedly preempted under federal law. The court summarily ruled that the plaintiff’s claims were not expressly preempted because they do not fall within any of the express preemption provisions of the Nutritional Labeling and Education Act. The court also ruled that the claims were not impliedly preempted because (i) the…

A federal court has refused to dismiss putative class claims filed under California’s consumer protection law against a company that advertises its pasta sauce, which contains high-fructose corn syrup (HFCS), as “all natural.” Lockwood v. ConAgra Foods, Inc., No. 08-04151 (N.D. Cal., decided February 3, 2009). The defendant sought to dismiss the claims on preemption grounds and called for the class allegations to be stricken “because plaintiffs cannot prove reliance on a class-wide basis.” According to the court, the federal Nutrition Labeling and Education Act (NLEA) does not apply to the “complaint as currently pled. Plaintiffs do not allege that defendant’s pasta sauce contains artificial flavoring, coloring or a chemical preservative; rather, they allege that the ‘high fructose corn syrup’ is not produced by a natural process and therefore the pasta sauce is not ‘all natural.’” The court also found that the claims were not impliedly preempted because “Congress has explicitly stated…

POM Wonderful LLC has reportedly brought false advertising and unfair competition claims in federal court against Welch Foods Inc. for marketing a product with little pomegranate juice as a “white grape and pomegranate” juice. POM Wonderful LLC v. Welch Foods Inc., No. 09-00567 (C.D. Cal., filed January 23, 2009). According to a news source, POM Wonderful has built a multimillion-dollar business by making and marketing the health benefits of a pomegranate juice-based product line. The company alleges that Welch has taken advantage of its success by developing an intentionally confusing and misleading product and implying “that its product is of the same composition and quality of blended pomegranate juices such as plaintiff’s blended pomegranate juices, when in fact Welch’s has substituted much of the valuable and beneficial substance of pomegranate juice with economically and nutritionally inferior juices such as apple.” POM Wonderful apparently alleges that Welch has violated the false advertising…

Food litigator William Marler has filed a second lawsuit against the Peanut Corp. of America (PCA) on behalf of a California family whose 3-year-old son allegedly fell ill and was hospitalized after eating Salmonella-contaminated peanut butter cracker sandwiches made with a PCA peanut butter product. Trone v. Peanut Corp. of Am., No. 09-418 (N.D. Cal., filed January 28, 2009). The outbreak, which has reportedly sickened more than 500 people across the United States and contributed to eight deaths, has led to one of the largest food recalls in the nation’s history. PCA expanded its recall from peanut butter and peanut paste to all peanuts and peanut products, including whole peanuts (dried, roasted or raw), granulated peanuts and peanut meal, processed in its Blakely, Georgia, facility since January 1, 2007. According to the PCA recall notice, the company sold its recalled products to institutions, food service industries and private label food companies in…

The U.S. Supreme Court has denied a petition seeking review of a California Supreme Court ruling that allowed plaintiffs to pursue putative class claims alleging that grocery stores failed to inform California consumers about the artificial coloring used in the farm-raised salmon they sold. Albertson’s Inc. v. Kanter, No. 07-1327 (U.S., certiorari denied January 12, 2009). The retailers had asked the Court to find the claims preempted by the Food, Drug, and Cosmetic Act. The case should now proceed to trial. Food and Drug Administration regulations allow salmon farmers to augment the normally grayish pigment of farm-raised fish with chemicals, but also require that the use of coloring be indicated on product labels. Federal law does not allow individuals to enforce the law through litigation, but it does not, according to attorneys involved in the case, bar civil lawsuits for violations of state law. The litigation was brought on both federal and…

According to news sources, litigation has been filed in California challenging a new law that prohibits the sale or distribution of food from nonambulatory livestock. One of the suits, filed in late December 2008 by the National Meat Association, claims that the state’s hog industry should be exempt. An association spokesperson reportedly indicated that “hog fatigue” causes hogs to lie down occasionally, but that nothing is wrong with these animals. The American Meat Institute (AMI) filed a motion to intervene, arguing that the law as a whole is preempted by the Federal Meat Inspection Act. An AMI press release notes, “on some occasions all species can become injured even until the last minutes before processing, but an injury like a broken ankle does not automatically make livestock unfit for consumption.” The California law (A.B. 2098), effective January 1, 2009, amended the state penal code by proscribing any slaughterhouse use of…

California’s Office of Environmental Health Hazard Assessment (OEHHA) is considering adopting rules under Proposition 65 (Prop. 65) that are intended to prevent overexposure to beneficial nutrients in food. The agency’s “Initial Statement of Reasons” for the proposed rules, still in draft, note that “[e]xcessive exposures to some [vitamins and minerals necessary to promote human health] have the potential to cause cancer or adverse reproductive effects.” OEHHA plans to establish the level of a listed chemical that does not constitute an exposure within the meaning of Prop. 65 and thus would not require warnings. Previous drafts indicated that the agency would rely on “Recommended Dietary Allowance” levels, but the most recent version indicates that levels for individual chemicals will be made on the basis of a chemical-by-chemical evaluation. OEHHA has also apparently indicated its intention to address human nutrients and plant nutrients separately. According to the California League of Food Processors,…

The Air Resources Board (ARB) of California’s Environmental Protection Agency has published a request for research concepts for its 2009-2010 annual research plan. Among the general areas of research that ARB would like to fund are issues related to agriculture and to health and exposure. The deadline for concept submissions is January 20, 2009. Due to anticipated budget shortfalls, the agency has indicated that co-funded proposals are more likely to be approved and funded. ARB is interested in funding research relating to confined animal facility operations emissions, pesticide emission assessments, air emissions in agricultural ecosystems involving “nitrogen fate from fertilizer application,” and “[c]omparative assessment of emissions from various agricultural practices, including conservation management, conservation tillage, and use of equipment to reduce particulate entrainment emissions or VOC emissions.” Under the “health and exposure” rubric, ARB is seeking concept submissions relating to the “[i]mpact of nanoparticles in products and materials on personal…

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