California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has announced a meeting of its Carcinogen Identification Committee (CIC) on September 21-22, 2010, to consider whether to list 1,3-Dichloro-2-propanol (1,3 DCP) and 3-monochloropropane-1,2 diol (3-MCPD) under Proposition 65 (Prop. 65). These chemicals are apparently produced by treating proteins from hydrolyzed vegetables, such as soya, with hydrochloric acid and are commonly found in soy and related sauces that are not produced using traditional fermenting processes. They have also been found in malt products, sausage, minced beef, ham, and battered and fried fish. Public comments on the 1,3 DCP and 3-MCPD documents that OEHHA has prepared on the basis of a recent request for information must be filed by August 24, 2010.
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The Environmental Law Foundation has notified more than four dozen food manufacturers and retailers that they are in violation of California’s Proposition 65 Toxics Right to Know law (Prop. 65) after testing purportedly indicated the presence of lead in numerous fruit and fruit juice products. According to the foundation, “apple juice, grape juice, packaged pears and peaches (including baby food), and fruit cocktail” products contained “enough lead in a single serving that they require a warning” under Prop. 65, and the companies, since June 9, 2009, “have exposed and continue to expose consumers of their food products to lead” every day. California’s attorney general, city attorneys and county district attorneys received copies of the notice. The foundation declares in the notices that it intends “to bring suit in the public interest” against the listed companies in 60 days to correct the Prop. 65 violations. A foundation news release indicates that…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has withdrawn its proposal to establish a “safe harbor level” under Proposition 65 (Prop. 65) for fumonisin B1, a substance produced by several mold species that occur mostly in corn, wheat and other cereals. The Grocery Manufacturers Association (GMA) objected to the agency’s use of an expedited procedure. According to OEHHA’s notice, “[t]o evaluate the need for a conventional risk assessment, OEHHA would have to conduct a detailed review of the data submitted by GMA along with other relevant information that may be identified through an extensive literature search.” Because OEHHA would have been unable to timely complete its rulemaking process, it withdrew “its proposal to establish a specific level posing no significant risk using expedited methodology for fumonisin B1. “
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) recently announced that it is withdrawing a regulatory proposal to amend several provisions of the Proposition 65 (Prop. 65) implementing regulations that establish procedures for calculating “safe harbor” levels for listed chemicals. The public comment period on the proposal closed May 28, 2010. According to OEHHA, “significant changes will be made to the proposal,” thus it is being withdrawn. Chemicals on the Prop. 65 list are those known to the state to cause cancer or pose reproductive health risks. Manufacturers of products containing these chemicals must provide notice to consumers or risk the imposition of penalties.
The Ninth Circuit Court of Appeals has apparently denied the National Meat Association’s request that the entire court review a recent panel decision which lifted a preliminary injunction that prevented California from enforcing a law prohibiting slaughterhouses from taking, processing or selling nonambulatory animals. Additional details about National Meat Association v. Brown, No. 09-15483 (9th Cir. March 31, 2010), appear in Issue 344 of this Update. The National Meat Association indicated in a May 18 press release that it intends to ask the U.S. Supreme Court to review the matter.
A California trial court has reportedly begun hearing evidence to determine if a 2007 $2.3 million jury award to Nicaraguan banana plantation workers who claimed they were sterilized by exposure to pesticides was based on fraud. Defendant Dole Food Co. convinced the court in 2009 to dismiss two similar pending cases on the basis of testimony, by witnesses whose identities were kept secret due to purported threats of violence in Nicaragua, that the plaintiffs’ lawyers recruited bogus plaintiffs, coached them and used spurious lab tests to support their claims of sterility. An appeals court ordered the plaintiffs who had won awards in the earlier case to prove that their allegations were not fraudulent. According to a news source, Dole presented evidence showing that the plaintiffs could not recall details about plantations where they had purportedly been employed, could not answer questions about the chemical’s smell or were apparently sterile before they…
A federal district court in California has dismissed claims against the company that makes the product “I Can’t Believe It’s Not Butter,” finding that, while not preempted under federal labeling law, the complaint failed to allege facts “plausibly suggestive” of a claim entitling the plaintiff to relief under the U.S. Supreme Court’s recently adopted Twombly/Iqbal pleading standard. Rosen v. Unilever U.S., Inc., No. 09-02563 (N.D. Cal., decided May 3, 2010). The plaintiff alleged that the company violated state consumer protection laws by advertising its product as nutritious when, in fact, it contains partially hydrogenated oil, “an artificial, man-made substance that has no nutritional value and is known to cause a number of health problems.” The defendant sought to dismiss the claims as expressly preempted under the Nutritional Labeling and Education Act, contending that use of the phrase “0g Trans Fat” on product labels complies with Food and Drug Administration regulations where a…
A San Francisco elected official has reportedly asked the city attorney to draft an ordinance that would prohibit “fast food restaurants from including toys with meals marketed at children that are high calorie, high sugar and high in fat.” The request comes after the Santa Clara County Board of Supervisors’ recent approval of a similar ordinance. San Francisco District 1 Supervisor Eric Mar (D) told a news source that his effort is intended to reduce childhood obesity. “We will protect our communities from fast food companies that are spending $1.6 billion marketing their wares to children,” he said. See The San Francisco Examiner, April 28, 2010, and Nation’s Restaurant News, May 2, 2010.
A putative class action has reportedly been filed against California’s largest herb grower, shipper and marketer, alleging that the defendant “played California consumers for fools,” by selling as organic, and at higher prices, conventionally grown herbs. Quesada v. HerbThyme Farms, No. __ (Cal. Super. Ct., filed April 2010). According to the complaint, the company owns a large number of conventional farms and just one smaller organic farm, and, when its “profits grew at a slower rate than the company wanted, it turned to fraud.” Seeking restitution, damages and injunctive relief, the plaintiff alleges that the company labeled conventionally grown herbs as “Fresh Organic” in violation of California business and consumer fraud laws. See Courthouse News Service, April 28, 2010.
The California county that helped lead the national push for menu labeling has reportedly approved an ordinance (NS-300-820) that would prohibit restaurants from using “incentive items” to promote meals deemed high in calories, salt or fat. The Santa Clara County Board of Supervisors apparently voted 3-2 on April 27, 2010, to set nutritional standards for restaurant food that comes with such giveaways as toys, games, trading cards, admission tickets, or any other consumer product, “whether physical or digital.” The measure declares that restaurants cannot link incentives to (i) meals that exceed 485 calories or 600 milligrams (mg) sodium; (ii) single food items that exceed 200 calories or 480 mg sodium; or (iii) beverages that contain caffeine, added nonnutritive sweeteners or more than 120 calories, or derive more than 35 percent of their total calories from fat or 10 percent from added caloric sweeteners. In addition, meals or food items offering…
