The California Cantaloupe Advisory Board (CCAB) has launched a new food-safety program that requires government audits of all cantaloupe production activities. Described by CCAB as “the only mandatory food-safety program that requires government audits of all cantaloupe production activities,” the program invites government auditors to inspect all aspects of operations including growing, harvesting, packing, and cooling to ensure that a set of “science-based standards is being followed.” Under the program, handlers must be 100 percent compliant with food-safety audits that cover 156 checkpoints. According to California melon producer and CCAB Chair Steve Patricio, CCAB will use inspectors from the California Department of Food and Agriculture instead of private inspection companies to ensure accountability, uniformity and consistency of audits throughout the California cantaloupe industry. Patricio also noted that the new audit program will allow producers to meet or exceed requirements of the Food Safety Modernization Act when it is implemented and that…
Tag Archives Colorado
A divided Colorado Supreme Court has determined that a trial court did not abuse its discretion when it refused to grant the motion for pro hac vice admission filed by Seattle-based law firm Marler Clark to represent a plaintiff in a foodborne illness lawsuit. In re Liebnow v. Boston Enters. Inc., No. 12SA83 (Colo., decided February 4, 2013). Counsel for the defendant had apparently consulted with Drew Falkenstein, a member of the Marler Clark firm, before plaintiff’s counsel asked another member of the firm to step in and represent the plaintiff. Defense counsel and Falkenstein “talked about defense counsel’s planned theory of the case,” advice on a trial expert and Falkenstein’s recommendation that a lettuce distributor be added as a nonparty defendant after he had researched E. coli outbreaks using Marler Clark’s publicly accessible database and finding such an outbreak at another local restaurant chain. “[T]he trial court concluded that…
A Colorado resident has filed a lawsuit on behalf of a putative nationwide class against Pepperidge Farm, Inc., alleging that the company misleads consumers by labeling its Cheddar Goldfish crackers “natural,” because they contain genetically modified organisms (GMOs) “in the form of soy and/or soy derivatives.” Bolerjack v. Pepperidge Farm, Inc., No. 12-2918 (D. Colo., filed November 6, 2012). Claiming damages in excess of $5 million, the plaintiff claims that she “purchased the Product believing it to be ‘Natural’ because he [sic] read and relied on Pepperidge Farm’s material statement that the Product is ‘Natural,’ prominently displayed on the Product’s front labeling/packaging. Plaintiff has been damaged by her purchase of the Product because the labeling and advertising for the Product was and is false and/or misleading under Colorado law; therefore, the Product is worth less than what Plaintiff paid for it and/ or Plaintiff did not receive what he [sic]…
A federal jury has reportedly awarded $7.2 million to a man who claimed that he developed bronchiolitis obliterans, a debilitating lung disease also known as popcorn lung, from consuming two to three bags of microwave popcorn every day for six years. Watson v. Dillon Cos., Inc., No. 08-91 (D. Colo., decided September 19, 2012). Details about the case appear in issue 244 of this Update. The settlement that the plaintiff reached with one of the defendants, a flavoring manufacturer, is discussed in Issue 331 of this Update. According to a news source, the jury found that Gilster-Mary Lee Corp., which manufactured the popcorn, and a retailer were negligent for failing to warn that diacetyl, the butter flavoring chemical in the product, was dangerous. The manufacturer was found liable for 80 percent of the damages, and the supermarket chain was found liable for 20 percent. The retailer has indicated that it…
The City of Lakewood, Colorado, has reportedly adopted an ordinance that will subject soft drinks and candy to a 3 percent city sales tax. The tax code change was apparently considered and approved during the city council’s August 27, 2012, meeting. The ordinance is intended to align the city’s taxation of food with the state by exempting sales of food for immediate consumption from sales tax, while taxing soda and candy. According to a news source, the change takes effect in 30 days. See ABC7News, TheDenverChannel.com, August 28, 2012.
Chipotle Mexican Grill, Inc., which operates 1,250 “fast-casual” restaurants throughout the United States, has sued The Kroger Co. in Colorado federal court, alleging that the grocery store chain has infringed the CHIPOTLE® trademark by using the descriptor on its spicy fried chicken take-out products. Chipotle Mexican Grill, Inc. v. The Kroger Co, 12-930 (D. Colo., filed April 5, 2012). According to the complaint, Chipotle has invested “tens of millions of dollars” “to create and maintain the goodwill of its CHIPOTLE® national brand,” which evidently includes a commitment to sourcing ingredients “in the most ethical and sustainable manner possible.” In addition to claiming monetary damages, Chipotle argues that Kroger’s use of the word “Chipotle” on its chicken entrée packaging has caused “irreparable harm to the value and goodwill of Plaintiff’s CHIPOTLE® Marks, as well as irreparable harm to Chipotle’s business, goodwill and reputation.” “Kroger’s use of CHIPOTLE… can only be explained by…
A federal court in Colorado has dismissed as premature a medical provider’s challenge to Food and Drug Administration (FDA) regulations potentially applicable to its medical procedures because the agency had issued only a warning letter against it, and warning letters are not final. Regenerative Sciences, Inc. v. FDA, No. 09-411 (D. Colo., decided March 26, 2010). The court’s analysis of the non-final nature of FDA warning letters may have some relevance in those consumer fraud actions against food makers citing such letters to establish a fact or using them as definitive evidence of wrongdoing or a violation of the law. The agency itself acknowledged that its warning letters do not constitute a determination that a particular statute or regulation applies to the specific circumstances that led FDA to issue the letters, noting “this is a factual issue that cannot be resolved until FDA brings an action against” the letter recipient.
According to a news source, a Denver man who alleged that his habit of consuming two bags of microwave popcorn every day caused his bronchiolitis obliterans, a debilitating lung condition purportedly associated with exposure to the butter flavoring diacetyl, has settled his claims against a flavoring manufacturer. Watson v. Dillon Cos., Inc., (D. Colo.) One of three diacetyl lawsuits brought by consumers in 2008, the claims of Wayne Watson were filed on his behalf by an Independence, Missouri, law firm that has obtained a number of settlements for workers with “popcorn lung” purportedly caused by occupational exposures to diacetyl. Details about Watson’s case appear in issue 244 of this Update. No additional information about the settlement has apparently been made available. See Findlaw.com, December 15, 2009.
The Boulder County Board of Commissioners has reportedly delayed a decision about whether genetically modified (GM) sugar beets can be grown on open-space land. At a August 25, 2009, public hearing, six farmers who in December requested permission to grow the beets on county land apparently asked the commissioners to delay the decision. “I don’t think any of us thought for a second that this issue would have become as emotionally charged as it has today,” one of the farmers was quoted as saying. In 2003, the commissioners voted to allow GM corn but stipulated that any new GM crop would need new permission. This spring, county staffers researched the pros and cons of GM sugar beets but during the recent meeting the commissioners asked the Parks and Open Space Department to create a broader policy that would address GM crops in general. “We do not want to be in…
Aurora Dairy Corp., which is defending multidistrict litigation involving putative class claims that it sold its products as “organic” without following national organic program standards, has sued one of its insurance carriers in federal court seeking a declaration that the insurer has wrongly failed to provide defense coverage. Aurora Dairy Corp. v. Nationwide Agribusiness Ins. Co., No. 09-00346 (D. Colo., filed February 19, 2009). According to the complaint, “Aurora has been named in thirteen consumer class actions filed in the courts of six different states.” The claimants in those lawsuits allege a variety of causes of action including “that the milk provided by Aurora that they purchased allegedly exposed them, their families and their friends to pesticides, hormones, antibodies, and other chemicals and/or has generally caused them injury or damage.” Additional details about the underlying lawsuits appear in issues 251, 279 and 286 of this Update. Aurora claims that it has…
