Environmental World Watch, Inc. (EWW) has reportedly filed litigation under California’s Proposition 65 (Prop. 65) against a number of companies that make snack foods. According to the attorneys who litigate as this advocacy organization, the companies fail to warn consumers that their products contain acrylamide, a chemical formed when certain foods such as breads, french fries and potato chips are made; it is included on the state’s list of substances known to cause cancer. Filed in Los Angeles Superior Court, the suit apparently seeks punitive damages for fraudulent concealment and Prop. 65 violations. EWW has previously brought Prop. 65 claims involving acrylamide against fast food restaurants. More information about that litigation appears in issue 5 of this Update. See CourtHouse News, June 10, 2009.
Tag Archives California
A California resident has sued Unilever United States, Inc. in federal district court, seeking class certification, injunctive relief, restitution, and punitive damages for alleged violations of state consumer protection laws in the sale and marketing of a butter-substitute product known as “I Can’t Believe It’s Not Butter!®” Rosen v. Unilever U.S., Inc., No. 09-02563 (N.D. Cal., filed June 9, 2009). According to the complaint, Unilever labels and promotes its product as “Made with a Blend of Nutritious Oils” and “a better nutrition option than butter,” when, in fact, the product contains “a highly unhealthy, non-nutritious oil known as partially hydrogenated oil.” Claiming that he would not have purchased the product but for reliance on defendant’s purportedly deceptive statements, named plaintiff Amnon Rosen alleges only economic injury, stating that he “suffered injury in that he would not have paid money for the Product had these misrepresentations not been made.” Still, he avers…
California’s Office of Environmental Health Hazard Assessment (OEHHA), which is responsible for implementing the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65), is reportedly reviewing a joint industry proposal submitted in April 2009 with detailed recommendations for a comprehensive food warning system. OEHHA has been conducting meetings with stakeholders to develop a regulation that would provide consumers with point-of-sale warnings about food chemicals known to the state to cause cancer or pose reproductive health hazards. The California Grocers Association, California Retailers Association, California League of Food Processors, American Beverage Association, and Grocery Manufacturers Association proposal would exempt small retail establishments from regulation and would allow warnings to be provided via (i) signage at a store’s entrance, (ii) pamphlets or brochures, or (iii) the backs of cash register receipts. Environmental groups and consumer advocates have reportedly criticized the industry approach, saying that most consumers would remain unaware…
A federal court in California has dismissed a putative class action alleging that the maker of Cap’n Crunch with Crunchberries® cereal misrepresented its product in violation of the state’s Business & Professions Code. Sugawara v. Pepsico, Inc., No. 08-01335 (E.D. Cal., decided May 21, 2009). Plaintiff alleged that the colorful “Crunchberries” depicted on the cereal box, combined with the use of the word “berry” in the product name, convey the message that the product contains fruit. She claimed that she purchased the product for some four years because she had been misled by defendant’s advertising and misrepresentations, never discerning that the product has no berries of any kind and that the only fruit content is “strawberry fruit concentrate, twelfth in order on the ingredient list.” According to the court, “while the challenged packaging contains the word ‘berries’ it does so only in conjunction with the descriptive term ‘crunch.’ This Court…
A California appeals court has determined that Starbucks did not violate state labor laws by allowing shift supervisors to share the tips left by customers in collective tip boxes and thus, overturned an $86 million award made to a class of current and former Starbucks’ baristas. Chau v. Starbucks Corp., No. D053491 (Cal. Ct. App., decided June 2, 2009). Because shift supervisors serve customers and rotate such duties with baristas, the appeals court determined that the shift supervisors were among those for whom the tips were intended. So ruling, the court distinguished Starbucks’ policy of equitably distributing collective tip-box proceeds from the prohibited practice of mandatory tip pooling.
The U.S. Department of Justice (DOJ) has intervened in a qui tam, or whistleblower, lawsuit filed in California by the Humane Society of the United States against two former suppliers to the National School Lunch Program. The suit alleges that Hallmark Meat Packing Co. and Westland Meat Co., Inc. knowingly and falsely represented that cattle at their slaughtering facility were treated humanely and that beef supplied to the schools did not include meat from disabled, non-ambulatory animals. Videotape of employees abusing non-ambulatory animals at the slaughterhouse resulted in the recall of 143 million pounds of beef in February 2008. Under the False Claims Act, private parties, or “relators,” may file claims on behalf of the U.S. government and may recover a portion of any recovery. The government, which will file an amended complaint now that it is a party to the action, is entitled to treble damages and civil penalties of…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has published hazard identification materials for bisphenol A in advance of a July 15, 2009, meeting at which the agency will consider whether to list the substance under Proposition 65 (Prop. 65) as a chemical known to the state to cause reproductive harm. Written comments are requested by June 30, 2009. If bisphenol A is listed, manufacturers of products sold in the state containing the chemical will have to provide consumers appropriate warnings. The May 2009 draft of “Evidence on the Developmental and Reproductive Toxicity of Bisphenol A” observes that the substance “is produced in large quantities for use primarily in the production of polycarbonate plastics and epoxy resins . . . used in certain food and drink packaging.” According to the draft, detectable levels of the chemical “have been found in the general population.” While human studies are apparently “of…
The pesticide-exposure claims of Nicaraguan banana-plantation workers were dismissed in two cases after a hearing that began April 21, 2009, in a state court in Los Angeles, California. Meija v. Dole Food Co., No. BC340049 (Cal. Super. Ct., Los Angeles Cty.); Rivera v. Dole Food Co., No. BC379820 (Cal. Super. Ct., Los Angeles Cty.). Additional details about the events leading to the court’s show-cause order and hearing appear in issue 297 of this Update. The court agreed with Dole Food Co. allegations that Nicaraguan lawyers, seeking to collect millions of dollars in damages from the company, recruited poor men to pose as plantation workers and claim that pesticide exposure caused their sterility. Dole introduced evidence showing a decade-long conspiracy to defraud U.S. companies and perpetuate a massive fraud on the court. Dole alleged that the attorneys intimidated witnesses and paid plaintiffs, showed them videos depicting plantation life, falsified sterility documents,…
A working group of California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) met on April 23, 2009, to consider how warnings under Proposition 65 could be provided to consumers of food products containing chemicals known to the state to cause cancer or reproductive harm. Participants discussed a draft proposal submitted by the California Grocers Association, California Retailers Association, California League of Food Processors, GMA, and American Beverage Association. It was the only proposed regulation to be submitted. Generally speaking, the proposal offers food manufacturers the option of uploading product-related information to an OEHHA Web site, which could be used, in turn, by retailers to download information that could be made available to consumers via computer, notebook, kiosk, or other similar means. Stakeholders representing consumer interests would prefer that warning information be placed on each product or in close proximity to them. While no final decisions were made during this…
California’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the deadline for public comment on its notice of intent to list 4- methylimidazole (4-MEI) as a chemical known to the state to cause cancer under Proposition 65 (Prop. 65). The new deadline is May 29, 2009. According to a news source, the proposed intent to list has generated significant opposition from grocers and other food industry representatives who argue that the chemical, which is found in foods such as wine, soy sauce and Worcestershire sauce after cooking, “is just the latest in a series of near-ubiquitous chemicals created as an unavoidable consequence of heating the natural constituents of foods.” Once a chemical is listed under Prop. 65, products containing the chemical cannot be sold without warnings. The industry groups reportedly contend, “listing 4-MEI can be expected to impact a wide swath of foods by producing warnings, changes in cooking methods,…
