The Ninth Circuit Court of Appeals has determined that animal rights activists and organizations lack standing to challenge the U.S. Department of Agriculture’s (USDA’s) interpretation of a 1958 humane animal slaughtering statute in a manner that excludes poultry from its application. Levine v. Vilsack, No. 08-16441 (9th Cir., decided November 20, 2009). The issue arose in a case alleging that “inhumane methods” of poultry slaughter increased the risk of food-borne illness to plaintiff consumers as well as health and safety dangers to plaintiff poultry workers. The court reversed a district court order granting USDA’s motion for summary judgment and remanded the case with instructions to dismiss. According to the court, the plaintiffs had the burden of establishing that their alleged injury “was likely to be redressed by a favorable court decision.” The key to the court’s redressability determination was that the 1958 law’s only enforcement mechanism was later repealed. If…
Tag Archives California
California’s Office of Environmental Health Hazard Assessment (OEHHA) is requesting written comments on two proposals. One would establish a “no significant risk level” for fumonisin B1, a chemical present in many corn-based food products, at a value that is apparently significantly lower than safe levels set by other regulators and could expose many companies to the risk of litigation under Proposition 65 (Prop. 65). Comments are due by November 23, 2009. According to an industry spokesperson, the proposed level of 1.5 micrograms per day is “very, very low,” particularly when compared with Food and Drug Administration standards and the standards of international regulatory bodies. A snack food company requested in 2008 that OEHHA establish a “safe use determination” for fumonisin B1, which would mean that products containing this naturally occurring chemical do not pose a health risk. The request is still pending. See Inside Cal/EPA, November 13, 2009. Meanwhile, OEHHA…
Nearly 20 organizations reportedly testified last week about the purported link between sugar-sweetened beverages and obesity at a special joint hearing of California’s Senate Select Committee on Obesity and Diabetes and the Senate Health Committee. Several researchers reportedly linked sugar-sweetened beverage consumption and obesity, but an American Beverage Association representative cited research showing that 5.5 percent of calories come from sweetened beverages and that a lack of exercise and other foods also contribute to obesity. She said that solely targeting soft drinks will fail to properly address the obesity issue, claiming research has shown that half of adults who don’t consume soft drinks are also overweight. Senator Elaine Alquist (D-San Jose) reportedly chided industry representatives: “To be told that all calories are equal, that sweetened soda pop is not contributing to obesity . . . the public is not stupid. We know you can do better.” See The Los Angeles Times;…
California residents have filed a putative class action in federal court against the company that makes a number of margarine products, alleging that the products are falsely marketed “as healthful despite the fact its margarines have dangerous levels of artificial trans fat, a toxic food additive banned in many parts of the world.” Red v. Unilever U.S., Inc., No. 09-07855 (C.D. Cal., filed October 28, 2009). According to the complaint, the defendant (i) “specifically markets its margarines as good for cardiovascular health,” (ii) uses “non-standard and deceptive charts” when comparing the nutritional value of margarine to butter, (iii) “misleads consumers by marketing its margarines as ‘cholesterol free,’ implying its products are desirable for those with high blood cholesterol levels,” and (iv) uses “words such as ‘natural’ and ‘nutritious’ to describe products with artificial trans fat and adding images of hearts.” Among the products subject to the litigation are I Can’t Believe…
A California resident has filed putative class claims against the Kellogg Co., alleging that it falsely advertises its Cocoa Krispies® cereal as a boost to children’s immunity. Kammula v. Kellogg Co., No. 09-08102 (C.D. Cal., filed November 5, 2009). According to the complaint, without the support of any “known clinical study,” Kellogg claims that the cereal “has been improved to include antioxidants and nutrients that your family needs to help them stay healthy.” The plaintiff alleges that this practice was intended “to profit from a growing trend in the manufacturing, advertising, and sales of ‘functional’ foods.” The complaint also alleges that “Defendants fail to adequately disclose that other ingredients, including but not limited to sugar, chocolate, high-fructose corn syrup and/or partially-hydrogenated oils, may not ‘help support’ a child’s immunity.” The named plaintiff seeks to certify a class of California residents who purchased Cocoa Krispies® since November 4, 2005, alleging false…
San Francisco’s city attorney has written to the Kellogg Co. to express “serious concerns about Kellogg’s advertising of sugary children’s breakfast cereals with the claims, ‘Now Helps Support Your Child’s Immunity’ on the front of the package.” The company is apparently promoting its Cocoa Krispies® cereal with this claim. The letter contends that “[t]he Immunity Claims may also mislead parents into believing that serving this sugary cereal will actually boost their child’s immunity, leaving parents less likely to take more productive steps to protect their children’s health.” City Attorney Dennis Herrera also states, “At a time when parents are increasingly worried about the spread of the H1N1 virus (‘swine flu’), it is vitally important that parents receive accurate information about what they can do to protect their children’s health.” He suggests that the company may be violating California’s Unfair Competition Law and that it may be undermining “critical public health efforts…
California and Michigan have adopted laws that animal welfare groups have reportedly heralded as landmark legislation. Governor Arnold Schwarzenegger (R-Calif.) signed a bill (S.B. 135) prohibiting tail docking of dairy cows, a “ common and cruel mutilation,” according to the Humane Society of the United States. The California bill takes effect January 1, 2010. Michigan Governor Jennifer Granholm (D) signed a bill (H.B. 5127) requiring that certain farm animals be provided enough room to stand up, turn around and extend their limbs rather than being confined in cages that impede their movement. “All animals deserve humane treatment, including those raised for food,” said the head of the humane society about the Michigan bill, which phases out veal crates for calves within three years, and battery cages for laying hens and gestation crates for breeding sows within 10 years. See Humane Society of the United States Press Releases, October 12, 2009.
A federal court in California has dismissed without prejudice putative class claims that Nature Valley granola bars were fraudulently promoted as “100% Natural” while containing purportedly non-natural ingredients such as high-fructose corn syrup (HFCS). Wright v. General Mills, Inc., No. 08-1532 (S.D. Cal., decided September 30, 2009). The court refused to dismiss the claims as preempted under federal law or under the primary jurisdiction doctrine, which allows courts to stay or dismiss litigation “pending the resolution of an issue within the special competence of an administrative agency.” The dismissal was based instead on the plaintiff’s failure to plead her claims with sufficient specificity under recent U.S. Supreme Court rulings that have, according to the court, dramatically changed the federal courts’ notice-pleading standard. The court determined that the first amended complaint (FAC) “is based on little more than conclusory and speculative factual content . . . Plaintiff argues that her FAC alleges…
California residents have filed a putative class action against Pinnacle Foods Group, LLC in federal court, alleging that its frozen food products, if prepared as directed, will not “reach the ‘kill step’ temperature necessary to destroy dangerous bacteria.” Meaunrit v. The Pinnacle Foods Group, LLC, No. 09-4555 (N.D. Cal., filed September 28, 2009). They also claim that the company’s failure “to use appropriate quality control measures within its supply chain,” means that “almost every ingredient in these products is a potential carrier of pathogens, according to government and industry officials.” According to the complaint, “[s]ince there is no reasonable way to know whether Salmonella or other bacteria has [sic] been destroyed based on the design of these products, Plaintiffs and the class suffered harm due to Pinnacle’s conduct.” The named plaintiffs seek to represent a class of either California or U.S. residents, who bought “pot pie products under the Swanson and…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) held a “pre-regulatory workshop” on September 25, 2009, to present to stakeholders its proposed warning program for exposures to Proposition 65 (Prop. 65) chemicals in foods sold at retail. According to a news source, industry representatives raised “significant” concerns over the draft proposal, which would require producers to place product-specific warning information on an internet database and retailers to access the information and select from a “menu” of options to communicate product warnings to the public. A spokesperson for the California Grocers Association reportedly complained that, as drafted, the existing plan would be impossible to comply with. She claimed that grocery stores should be able to make binders available to shoppers containing warning summaries for different foods. The effect on small grocers is also apparently an issue, and OEHHA counsel called on stakeholders to submit comments on how “small” retailers could…
