The U.S. Court of Appeals for the D.C. Circuit has upheld a lower court's ruling finding a challenge to the U.S. Food and Drug Administration's (FDA's) prohibition on interstate sales of unpasteurized butter to be meritless. McAfee v. FDA, No. 21-5170 (D.C. Cir., entered June 10, 2022). A lower court previously dismissed a challenge filed by a dairy farmer who argued that FDA's definition of butter does not require pasteurization and thus the rule banning the sale of unpasteurized butter under the Public Health Service Act (PHSA) made an "unlawful change to butter's statutory definition." FDA had denied the farmer's 2016 petition to exclude butter from the rule requiring pasteurization of milk products, finding that "the ban on raw butter helps prevent the spread of communicable diseases" and that "manufacturing controls intended to ensure safety [] may exist independent of any standards of identity." The D.C. Circuit was unpersuaded, agreeing…
Tag Archives D.C.
New York Attorney General Letitia James has announced a probe into whether baby food contains toxic elements such as arsenic and other metals. In a press release, James said, "“Baby food manufacturers have a legal and moral obligation to ensure the safety of their products, and provide peace-of-mind to the parents who rely on their products every day. Through this probe, I am committed to protecting the health and wellness of the next generation.” D.C. Attorney General Karl Racine filed a lawsuit against Beech-Nut Nutrition Co., alleging "that Beech-Nut’s deceptive and misleading advertising violated the District’s consumer protection laws and misled parents that its baby food underwent the most stringent testing and was fully safe for babies when, in fact, the food contained high levels of toxic heavy metals." Racine is quoted as saying, “No company should profit by illegally deceiving parents about products that actually jeopardize the health and…
A D.C. Superior Court has denied Smithfield Foods' motion to dismiss a lawsuit alleging it misleads consumers by marketing its products as "safer pork." Organic Consumers Assn. v. Smithfield Foods Inc., No. 2020 CA 2566 B (D.C. Super. Ct., entered December 14, 2020). The lawsuit, filed by the Organic Consumers Association (OCA), alleged that Smithfield "employs production practices that result in less-safe conditions, effects, and Products, including the routine preventative use of medically important antibiotics, crowded conditions, the use of potentially carcinogenic drugs, and rapid slaughter methods." The court disagreed with Smithfield's argument that the marketing statements were puffery or "too general to be actionable," finding that the statements Smithfield made about its safety were specific. Further, OCA's "allegations about consumer understanding are plausible," the court held, because the complaint cited sources "stating that food safety is an issue of significant concern to consumers" and studies showing "that a 'reasonable consumer'…
Food & Water Watch Inc. (FWW) has filed a lawsuit alleging that the U.S. Department of Agriculture (USDA) has "engaged in dilatory and obstructionist tactics" to avoid fulfilling the organization's Freedom of Information Act (FOIA) requests on documents related to the establishment of the New Swine Inspection System (NSIS). Food & Water Watch Inc. v. USDA, No. 19-3362 (D.D.C., filed November 7, 2019). FWW argues that USDA has "actually or constructively and unlawfully denied" its requests for "data and other agency records justifying" the NSIS rules "that replace government inspectors with plant employees in performing certain crucial animal and carcass inspections." The complaint alleges that the defendants "have failed to disclose records responsive to close to half of the originally requested items; have repeatedly ignored attempts to clarify what they have released; have released inaccurate, non-responsive records; have forced FWW to jump over the procedural hurdle of submitting an additional…
A Washington, D.C., Council member, with the support of seven other members, has introduced a tax on sugar-sweetened beverages (SSBs) that would replace a sales tax that took effect in early October 2019 with an excise tax applied to SSB manufacturers. According to a press release, the Healthy Beverage Choices Act of 2019 "repeals the existing 8% sales tax on sugary drinks (passed in 2010 and raised in 2019) and creates a new 1.5 cent per ounce excise tax on sugary drinks in the District," shifting the added cost from appearing "at the register" to appearing "on the price tag." The proposed tax would fund parks and healthy eating advocacy programs.
Children's Health Defense, an organization founded and chaired by Robert F. Kennedy, Jr., has filed a lawsuit alleging that Beech-Nut Nutrition Co. misrepresents its baby-food products as "100% natural" despite containing pesticide residues. Children's Health Def. v. Beech-Nut Nutrition Co., No. 2019 CA 4475 (D.C. Super. Ct., filed July 8, 2019). The organization alleges that Beech-Nut markets its products as "100% natural," which the company website apparently defines as "simple, all-natural ingredients from places that nurture their fruits and vegetables and care about their quality. We never use artificial preservatives—nobody really needs modified starch, salt or harsh spices, especially babies. … We're not a fan of pesticides; our internal standards are significantly stricter than federal requirements." The complaint asserts that an independent laboratory tested the products and found pesticide residues in several varieties. The organization alleges a cause of action under the District of Columbia Consumer Protection Procedures Act and…
The Animal Welfare Institute (AWI) has filed a lawsuit alleging that the U.S. Department of Agriculture (USDA) has failed to act on the organization's 2014 petition seeking certification for labeling claims about animal welfare and environmental stewardship during the meat and poultry production process. Animal Welfare Inst. v. USDA, No. 18-2621 (D.D.C., filed November 14, 2018). AWI's petition asserted that meat and poultry producers market food products as "humanely raised," made with "sustainable agricultural products," "raised in a stress free environment" and other similar claims despite allegedly exposing animals to "intensive confinement, barren and stressful housing conditions, and painful mutilations in order to increase production." AWI argues for the establishment of a certification program to verify marketing claims about animal welfare. According the complaint, USDA has not yet taken action on AWI's petition, allegedly resulting in an "unreasonable delay" in violation of the Administrative Procedures Act.
A D.C. court has dismissed a lawsuit challenging Deoleo USA Inc.'s "extra virgin" olive oil, finding that the plaintiff failed to state a claim. Fahey v. Deoleo USA Inc., No. 18-2047 (D.D.C., entered November 8, 2018). Deoleo settled a similar lawsuit in March 2018, and the plaintiff "apparently caught wind of this news," the court noted. "Six days after the settlement was publicized, he purchased a bottle of Bertolli EVOO … [and] filed suit some six weeks later." The court did not consider whether the plaintiff was bound by the terms of the settlement because it first found that the plaintiff failed to plead facts that could give rise to a right of relief. The plaintiff "marshals but one 'fact' to substantiate his claim that this defendant deceptively mislabeled the bottle of extra virgin olive [oil that the plaintiff] purchased in 2018: the results of a 2010 study on olive…
The U.S. Food and Drug Administration (FDA), the Center for Science in the Public Interest (CSPI) and the National Consumers League have filed a joint motion to stay a lawsuit intended to compel the agency to implement the delayed menu labeling rule required by the Affordable Care Act. Ctr. for Sci. in the Pub. Interest v. Price, No. 17-1085 (D.D.C., filed September 15, 2017). FDA has agreed to: (i) confirm in the Federal Register on or before December 31, 2017, that the compliance date of the rule is May 7, 2018; (ii) publish draft or final guidance by December 31, 2017; and (iii) announce by “rule, guidance, public statement, publically-available document, or otherwise,” if the compliance date could or will be extended past May 2018. If FDA fails to meet those terms, the advocacy groups may move for, and FDA will not oppose, expedited hearing of the lawsuit. Additional details appear…
Food & Water Watch has filed a lawsuit against the U.S. Department of Agriculture (USDA) and the Farm Service Agency seeking vacatur of agency decisions that guaranteed loans and allowed construction of a concentrated animal feeding operation (CAFO) in the Choptank River watershed on Maryland’s Eastern Shore. Food & Water Watch v. United States Dep’t of Agric., No. 17-1714 (D.D.C., filed August 23, 2017). The CAFO is located upstream from the Chesapeake Bay, where the U.S. Environmental Protection Agency and surrounding states have undertaken extensive agricultural pollution cleanup efforts. Among other allegations, the complaint asserts that USDA’s environmental assessment found that the CAFO’s density would conform to industry standards but that the actual density is nearly double those standards, resulting in higher-than-average waste concentration, air and water pollution. The plaintiff argues that the agencies (i) failed to consider adequate alternatives; (ii) failed to address biological resources, groundwater, surface water or…
