The Physicians Committee for Responsible Medicine (PCRM) has sued KFC Corp. and its parent Yum! Brands, Inc. in a California court, alleging that they have failed to comply with Proposition 65 (Prop. 65) by selling grilled chicken without warning consumers that it contains a substance, PhIP, known to the state to cause cancer. PCRM v. KFC Corp., No. __ (Cal. Super. Ct., San Francisco Cty., filed September 23, 2009). According to a news source, the allegations are nearly identical to litigation PCRM filed in 2008 against other fast-food restaurants. A court dismissed that complaint, citing the preemption of Prop. 65 claims by federal law which requires chicken to be cooked to food-safe temperatures. PCRM has reportedly appealed the court’s ruling, arguing that the food-safe temperature requirement is merely U.S. Department of Agriculture policy and that states traditionally govern public health and safety issues. KFC was not apparently included in the earlier…
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A California man who alleges that he was misled by the packaging and advertising for Cap’n Crunch with Cruncherries® has brought a putative class action against the cereal maker in federal district court. Werbel v. Pepsico, Inc., No. 09-4456 (N.D. Cal., filed September 22, 2009). Alleging violations of California’s unfair competition and false advertising laws, intentional misrepresentation, breach of express and implied warranties, and violations of the Consumers Legal Remedies Act, the plaintiff claims that he and a class of California consumers were misled by representations that the product contained fruit. Yet, according to the complaint, “the only fruit content is a touch of strawberry fruit concentrate—twelfth in order on the ingredient list, just after partially hydrogenated soybean oil and ‘natural and artificial flavors,’ and just before malic acid.” According to the complaint, the plaintiff “trusted the Quaker label because of the company’s long history of producing other wholesome breakfast…
A putative class action was reportedly filed in a California state court against Nestlé, alleging that the company falsely advertises its “Juicy Juice Brain Development Fruit Juice” as a product that will improve toddlers’ brain function. Plaintiff Alexis Farmer, who then dismissed the complaint without prejudice several days later, reportedly claimed that she purchased the company’s juice relying on labeling and advertisements stating that it contained DHA Omega-3, a “fatty acid especially important for brain development in children under two years old.” Farmer was seeking damages and injunctive relief; her complaint apparently alleged false and misleading advertising, unjust enrichment, fraud, and civil code violations. See Courthouse News, September 23, 2009. In a related development, Health Canada has apparently decided not to stop infant-formula manufacturers from claiming that DHA, in any amount, will support normal brain and eye development, particularly for children under two. The Canadian Food Inspection Agency asked the…
A federal court in California has determined that the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) erred when it deregulated a genetically engineered (GE) sugar beet without preparing an environmental impact statement. Ctr. for Food Safety v. Vilsack, No. 08-00484 (N.D. Cal., decided September 21, 2009). Thus, the court granted the motion for summary judgment filed by the Center for Food Safety and other environmental interest groups and scheduled a hearing for October 30, 2009, to decide what remedies will be appropriate. A court in the same federal district ruled in 2007 that APHIS erred in deregulating GE alfalfa, and this court based its ruling on that decision, which resulted in an effective halt to the use of GE alfalfa. According to the court, which discussed at length how sugar beets are grown and how cross-pollination can occur with non-GE sugar beets and related Swiss chard and…
California’s Office of Environmental Health Hazard Assessment (OEHHA) has reportedly drawn criticism from both the food industry and environmental groups over a recent draft proposal to amend its Proposition 65 (Prop. 65) regulations governing food chemicals. Prop. 65 requires food and beverage manufacturers and retailers to provide “clear and reasonable warning“ to individuals about any substance known to the state to cause cancer, birth defects or other reproductive harms. The amendment to “safe harbor” regulations in Title 27, California Code of Regulations, section 25601, would create a centralized Web database where participating manufacturers could post product-specific warning information for use by retailers and consumers. “These are voluntary actions and all food manufacturers or retailers are still free to provide a warning via another ‘safe harbor’ method or any other method that provides a clear and reasonable warning,” according to OEHHA, which has also announced a September 25 public meeting about…
California legislators have reportedly rejected a bill (S.B. 797) that would have required manufacturers to remove by 2011 the chemical bisphenol A (BPA) from food and beverage containers intended for children ages 3 and younger. Unable to garner the 41 votes needed to pass in the Assembly, the bill will reportedly come under reconsideration in 2010. The bill’s sponsor, Senator Fran Pavley, (D-Agoura Hills), has reportedly accused the chemical industry of an “expensive and shamefully deceptive lobbying campaign,” alleging that some senators were told that food production plants in their district would close if the bill was passed. “It’s a shame that we have failed to protect our most vulnerable citizens,” Pavley said. Despite claims purportedly linking BPA to early onset puberty, obesity, birth defects, and breast cancer, the chemical industry has repeatedly pointed to a global consensus among food safety bodies that the substance is safe for use in…
The chair of the California Senate’s Select Committee on Obesity and Diabetes has reportedly announced a November 2009 hearing to discuss the purported link between sweetened beverage consumption and obesity. An author of the state’s menu labeling laws, California Senator Alex Padilla (D-San Fernando Valley) issued the September 17, 2009, press release in response to a report published by the California Center for Public Health Advocacy (CCPHA) and UCLA Center for Health Policy Research. Titled Bubbling Over: Soda Consumption and its Link to Obesity in California, the study used data from the 2005 California Health Interview Survey to conclude that “41 percent of children (ages 2-11), 62 percent of adolescents (ages 12-17) and 24 percent of adults drink at least one soda or other sugar-sweetened beverage every day.” It also apparently found that “adults who drink one or more sodas or other sugar-sweetened beverages every day are 27 percent more likely…
Putative class claims have been filed in a California federal court against Old Mother Hubbard, Inc. and Petco Animal Supplies, Inc. alleging fraud in the sale of Wellness pet food. Barney v. Old Mother Hubbard, Inc., No. 09-06194 (C.D. Cal., filed August 25, 2009). According to a news source, the complaint contends that the pet food, which is more expensive than other brands, is advertised as containing only “human grade” meat, while it actually contains feathers, viscera, skin, and bones. The plaintiffs, who have invoked the court’s diversity jurisdiction, seek punitive damages and an injunction to stop ads which allegedly claim that the pet food ingredients are “of the same quality you would feed to your own family.” See Courthouse News Service, August 31, 2009.
A California trial court has determined that the insurer of the nation’s largest seller of bagged fresh spinach must pay for its losses from the 2006 nationwide E. coli outbreak that led to a Food and Drug Administration (FDA) advisory against eating any fresh spinach. Fresh Express, Inc. v. Beazley Syndicate 2623/623 at Lloyd’s, No. M88545 (Cal. Super. Ct., Monterey Cty., decided August 18, 2009). The outbreak was ultimately traced to a different producer, and the insurer denied coverage. Following a bench trial, the court determined that (i) the produce company introduced sufficient evidence to establish that it committed “errors” within the policy’s meaning by failing, before purchasing spinach, to conduct a food safety audit of the field where it was grown to verify that the growers had complied with good agricultural practices; (ii) this verification of good practices compliance “was an integral and inseparable part of its safe manufacturing practices”;…
In the wake of lawsuits filed by the manufacturer of a pomegranate-juice based product line, consumers have now begun seeking damages against the same defendants for alleged deception and fraud in the sale of pomegranate juice purportedly containing “little or no pomegranate juice.” Burcham v. Welch Foods, Inc., No. 09-05946 (C.D. Cal., filed August 14, 2009). Additional information about the lawsuits filed by POM Wonderful LLC against Welch Foods, Inc. and Ocean Spray Cranberries, Inc. appears in issues 290 and 313 of this Update. According to plaintiff Maryam Burcham, seeking damages for herself and a class of “All persons residing in California who purchased Welch’s ‘White Grape Pomegranate Juice,”’ the defendant’s product “purports to combine white grape and pomegranate into a single juice product. However, the truth is that the main ingredients in Defendant’s White Grape Pomegranate Juice are actually cheap white grape and apple juice, instead of pomegranate juice,…
