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A California federal court has denied a motion to dismiss a lawsuit alleging that Sanderson Farms Inc. misleads consumers about the presence of antibiotics in its chickens. Friends of the Earth v. Sanderson Farms Inc., No. 17-3592 (N.D. Cal., entered December 3, 2018). The plaintiffs—several advocacy groups—assert that Sanderson's marketing misleads consumers into believing that its chickens are raised without antibiotics, while Sanderson argues that its labeling, advertisements and website communicate to consumers that the chicken products they purchase do not contain antibiotics. "Sanderson argues its infographic on its '100% Natural' webpage contains only true statements: it shows what ingredients are not added to the chicken and says nothing about antibiotic use or nonuse," the court stated. "Defendant appears to make an expressio unius argument: that because antibiotics are not included in the list of excluded artificial ingredients, a reasonable consumer could not conclude that antibiotics are also excluded. As…

The Food Safety and Inspection Service (FSIS) of the U.S. Department of Agriculture has denied a petition from the National Chicken Council seeking to waive the line speed limit of 140 birds per minute in processing plants. FSIS told the council that processors of young chicken are permitted to run at higher speeds if they were one of 20 participants in a New Poultry Inspection System pilot study operating under a Salmonella Initiative Program (SIP) waiver. During the pilot program, participants demonstrated that they could maintain process control at line speeds up to 175 birds per minute and were capable of "consistently producing safe, wholesome and unadulterated product" and "meeting pathogen reduction and other performance standards.” The agency's letter indicated that it would consider granting additional SIP waivers but would not grant waivers that would allow processors to operate without maximum line speeds.

A consumer has filed a lawsuit alleging that she became ill after eating a chicken salad containing “hard, gray-colored granules” with a “foul odor and taste” at a location of Bojangles Famous Chicken 'n Biscuits. Green v. Bojangles Restaurants, Inc., No. 17-2936 (D.S.C., removed to federal court October 30, 2017). The plaintiff asserts that she ordered a Roasted Chicken Bites salad that contained the granules, which she ate because she purportedly thought they were pieces of feta cheese. The plaintiff contends that she immediately became ill and vomited at the restaurant, while her husband took the granules to the restaurant owner, who apparently indicated he would have them tested at a laboratory. The plaintiff also argues that after the incident, she developed “nodules or growths” in her throat that remained for about 18 months. Claiming strict liability, breach of implied warranty, negligence, negligence per se and loss of consortium, the plaintiff…

A KFC Corp. franchisee that sells halal chicken has filed a lawsuit against the company, alleging the franchise agreements did not disclose a purported company policy preventing franchisees from making religious claims about their food. Lokhandwala v. KFC Corp., No. 17-5394 (N.D. Ill., filed July 24, 2017). The plaintiff, who owns and operates eight franchises, began advertising and selling halal chicken in 2003, and KFC allegedly assisted with locating approved poultry suppliers and distributors of halal-certified chicken. In 2016, the plaintiff asserts, the company informed him that it had a policy dating back to 2009 prohibiting religious claims about KFC products, “citing a risk of lawsuits and consumer confusion.” The plaintiff alleges the policy was not disclosed in any of his franchise agreements, violating the Illinois Franchise Disclosure Act; he further alleges that his “customer base and business revenue is heavily dependent on the sale of Halal chicken to the Muslim community”…

Food & Water Watch, a consumer advocacy group, has filed suit against the U.S. Department of Agriculture (USDA) and the Food Safety and Inspection Service over the agencies’ denial of the group’s Freedom of Information Act (FOIA) requests asking for the names of companies that opted to participate in the New Poultry Inspection System (NPIS). Food & Water Watch, Inc. v. U.S. Dep’t of Agric., No. 17­-1133 (D.D.C., filed June 9, 2017). USDA implemented the optional NPIS in an effort to reduce rates of foodborne illness attributable to chicken and turkey contaminated with Salmonella and Campylobacter. Food & Water Watch requested the identities of the companies that chose to participate in NPIS, but their FOIA requests were denied on the grounds that “the responsive records consist solely of confidential future business plans.” Alleging violations of FOIA, the plaintiff is seeking an order for disclosure of the requested records and attorney’s…

Subway has issued a notice of action in Canada against the Canadian Broadcasting Corporation (CBC) following a February broadcast of the network’s “Marketplace” program that claimed DNA testing of the chain’s sandwiches showed its chicken was half processed soy. The sandwich chain is reportedly asking for $210 million in damages for defamation. According to the Toronto Star, Subway asked the CBC to retract the story but decided to file suit after the network refused. Additional details about a U.S. projected class action filed against Subway after the CBC report appear in Issue 627 of this Update. See Fortune, March 17, 2017,   Issue 628

A Connecticut plaintiff filed a projected class action against Subway after DNA testing of the chain’s chicken sandwiches allegedly showed the meat was only 42 to 53 percent chicken and the remainder was processed soy. Moskowitz v. Doctor’s Associates Inc., No. 17­-0387 (D. Conn., filed March 1, 2017). Researchers affiliated with the Canadian Broadcasting Company’s “Marketplace” news show apparently found that the meat used in Subway’s oven-­roasted chicken items was only 53.6 percent chicken, while the meat used in the sweet onion teriyaki items was only 42.8 percent chicken. The plaintiff claims that Subway is “disseminating false and misleading information via advertising, marketing, its website, and menu intended to trick unsuspecting customers, into believing they are purchasing chicken for their money, rather than Sandwiches and Chicken Strips containing a multitude of ingredients.” The complaint alleges violations of the federal Magnuson-­Moss Warranty Act, the Connecticut Unfair Trade Practices Act, breach of…

The Ninth Circuit Court of Appeals has ruled that the attorneys general of six states—Missouri, Nebraska, Oklahoma, Alabama, Kentucky and Iowa—do not have standing to sue California AG Kamala Harris in an attempt to block enforcement of a law requiring egg-production facilities to provide hens enough space to fully extend their limbs and turn around freely in the confinement in which they spend the majority of the day. Missouri v. Harris, No. 14-17111 (9th Cir., order entered November 17, 2016). The court found that the plaintiff states did not have parens patriae standing, the standing provided to a governmental entity as the legal protector of its citizens. The states could not “articulate an interest apart from the interests of private egg producers, who could have filed an action on their own behalf,” the court held. Further, the states’ allegations about potential economic damages were speculative, and “the allegations of discrimination were…

The Southern Poverty Law Center (SPLC) has urged the U.S. Occupational Safety and Health Administration to investigate Farm Fresh Foods, LLC, arguing the company forced sanitation workers to race against one another to carry and unpack 80-pound crates of chicken. The company allegedly required workers to unload raw chicken after cleaning the processing plant without washing their hands or changing clothes; SPLC asserts that workers’ concerns about contaminating the chicken were ignored. Farm Fresh also allegedly denied workers bathroom breaks, disciplined them for walking around empty-handed and jeered at them while they worked. “It’s clear from the treatment of these workers that Farm Fresh Foods has little regard for its employees,” Naomi Tsu, SPLC deputy legal director, said in a July 26, 2016, press release. “Farm Fresh needs to listen to workers rather than retaliating against them. We’ve seen this happen again and again in the poultry industry—these companies must…

The High Court of England and Wales has reportedly held DJ Houghton Chicken Catching Services liable for claims brought by six Lithuanian men who allege they were victims of trafficking. The company lost its license after police raids in 2012 found what the Gangmasters Licensing Authority called “the worst UK gangmaster ever.” The men assert that during their employment catching chickens for the company, they were denied sleep and toilet breaks, charged illegal work-finding fees, abused and assaulted, denied minimum wages and provided dirty, overcrowded and unsafe living quarters. The owners of the company argued that a Lithuanian supervisor was at fault for the treatment, but the court reportedly found that the supervisor’s methods were integral to business operations, leaving the company liable for his actions. The attorney representing the Lithuanian men told The Guardian, “This is the first time a British company has been found liable for victims of…

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