Less than two weeks after a consumer fraud class action was filed in California against the company that makes Muscle Milk® beverages and protein bars, the Food and Drug Administration (FDA) sent a letter to its CEO warning that the products are misbranded because their labels either prominently feature the word “milk” without containing any or state that they contain no milk while made of milk-derived ingredients. The letter also warns that health-related claims or “0 trans fat” assertions are unauthorized because the products contain too much fat or too much saturated fat. The June 29, 2011, letter demands a response within 15 days of receipt. Additional information about the lawsuit appears in Issue 403 of this Update. According to a news source, CytoSport has indicated that it is “proactively and openly addressing the FDA’s labeling concerns” and also notes, “Concerns like this have been raised before when the dairy…
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A federal court in Vermont has certified a class of 9,000 to 10,000 dairy farmers who allege that Dean Foods Co. and others engaged in anticompetitive conduct and given preliminary approval to a settlement reached in December 2010. Allen v. Dairy Farmers of Am., Inc., No. 09-00230 (D. Vt., order entered May 4, 2011). Under the settlement, Dean Foods does not admit any wrongdoing, but will create a $30 million settlement fund. Its co-defendants have objected to the settlement, but the court determined that they lack standing to oppose preliminary approval of the Dean settlement. The court also noted that they opposed a settlement provision that has been removed. The court denied several motions to intervene and scheduled a final hearing date for July 18, 2011. The plaintiffs alleged conspiracies to monopolize, fix prices and restrain trade. Common questions of law and fact included whether the defendants “conspired to fix,…
The Center for Science in the Public Interest (CSPI) has sent a letter to Food and Drug Administration (FDA) Commissioner Margaret Hamburg, drawing attention to a plan that would allegedly prohibit FDA from considering drug residues in bob veal calf tissues “as an indicator of possible drug misuse on dairy farms.” According to CSPI, bob veal cattle are young beef animals “harvested directly from dairy farms, and therefore, these cattle are key indicators of drug use on the specific farms and are also important indicators of potential use in dairy cattle residing on those farms.” The consumer group thus feels that a policy barring test results from these animals “would make it harder for FDA to detect misuse of animal drugs in dairy cattle and, as a result, consumers may be more likely to be exposed to hazardous drugs in milk and milk products and/or resistant strains of human pathogens…
EPA has issued a final rule exempting milk, milk product containers and milk production equipment from Oil Spill Prevention, Control and Countermeasure (SPCC) regulations. Effective June 17, 2011, the rule could potentially save the milk and dairy industries more than $140 million a year by eliminating “unnecessary burdens,” according to EPA. Implemented in the 1970s to protect U.S. inland waters and shorelines, SPCC regulations require facilities storing more than 1,320 gallons of oil to “create and implement plans to prepare, prevent and respond to oil spills.” The exemption does not apply to “fuel oil and other applicable oils stored on farms, farms that store the regulatory threshold of fuel oil and other applicable oils covered under the SPCC.” Because some facilities may still have oil storage subject to SPCC regulations, the rule also excludes milk storage capacity from a facility’s total oil storage capacity calculation and removes compliance date requirements…
A bill (S. 831) spearheaded by Senator Al Franken (D-Minn.) would require country-of-origin labeling (COOL) on dairy products such as milk, cheese, yogurt, ice cream, and butter. Franken was quoted as saying that the legislation “isn’t a silver bullet, but it does give family farms another tool that will help them compete in a crowded marketplace. And it gives consumers the option to purchase milk and cheese from our own family farms.” See Product Liability Law 360, April 15, 2011.
The U.S. Department of Justice (DOJ) has reached a settlement with Dean Foods Co. over antitrust concerns about its acquisition of the Foremost Farms USA Coop. Under the agreement, which will be published in the Federal Register for comment and must undergo court approval, Dean will “divest a significant milk processing plant in Waukesha, Wis., and related assets . . . including the Golden Guernsey brand name.” The agreement also apparently requires Dean to “notify the department before it makes any future acquisition of milk processing plants for which the purchase price is more than $3 million.” According to DOJ, the divestiture will “restore competition in the sale of milk to schools, grocery stores, convenience stores and other retailers in Illinois, Michigan and Wisconsin.” See Department of Justice Press Release, March 29, 2011.
The Codex Committee on Methods of Analysis and Sampling has reportedly endorsed guidelines providing regulators and the dairy industry a standard reference for testing melamine in dairy products, including powdered infant formula. Developed by the International Dairy Federation (IDF) and the International Organization for Standardization (ISO) in the wake of a melamine contamination scandal in China that purportedly sickened thousands of young children, the guidelines represent an internationally harmonized procedure that will allow authorities to determine if levels of melamine in dairy products exceed the Codex maximum level of 1 mg melamine per kg of product. The Codex Alimentarius Commission will consider the committee’s endorsement and vote on the guidelines’ adoption in July 2011. The guidelines, titled “ISO/TS 15495 IDF/RM 230:2010, Milk, milk products and infant formulae—Guidelines for the quantitative determination of melamine and cyanuric acid by LC-MS/MS,” reportedly provide advice about sampling, test procedures and performance with examples of…
“Each year, federal inspectors find illegal levels of antibiotics in hundreds of older dairy cows bound for the slaughterhouse,” opens this article about the Food and Drug Administration’s (FDA’s) recent decision to begin testing milk from farms “that had repeatedly sold cows tainted by drug residue.” Concerned that “the same poor management practices which led to the meat residues may also result in drug residues in milk,” FDA evidently singled out approximately 900 dairy farms for testing that would include “two dozen antibiotics beyond the six that are typically tested for.” The new protocol also covered flunixin, “a painkiller and anti-inflammatory drug popular on dairy farms . . . which often shows up in the slaughterhouse testing.” Although the plan reportedly drew support from consumer advocates like the Center for Science in the Public Interest, it prompted a backlash from dairy farmers and state regulators who objected to the week-long…
According to a news source, a co-defendant in litigation alleging a price-fixing conspiracy in the northeastern U.S. milk market has filed objections to the tentative deal reached by Dean Foods Co. and the dairy farmers who filed the lawsuit. Allen v. Dairy Farmers of Am., No. __ (D. Vt., settlement reached December 24, 2010). More information about the settlement, which must be approved by a court, appears in Issue 376 of this Update. Dairy Marketing Services, LLC and a number of individual dairy farmers have also apparently opposed the settlement. The objectors contend that the settlement will result in price erosion for all dairy farmers and creates “both winners and losers in the class of dairy farmers represented by a single law firm by taking market access from one group of dairy farmers at the expense of another within the same class.” They also claim that the small settlement of…
Northeast dairy farmers have reportedly settled their price-fixing claims against Dean Foods Co. for $30 million and injunctive relief requiring the company to buy a portion of its raw milk from multiple sources. Allen v. Dairy Farmers of America, No. __ (D. Vt., settlement reached December 24, 2010). While the agreement requires court approval, it would reportedly allow some 5,000 to 10,000 farmers to file claims for monetary damages over allegations that Dean Foods would buy milk only through Dairy Farmers of America (DFA) and its affiliates in the region. According to counsel for the plaintiffs, the case will continue against DFA, to resolve claims that “the nation’s largest cooperative monopolized a level of distribution of fluid milk in the Northeast and forced dairy farmers to join DFA or its marketing affiliate [Dairy Marketing Services] to survive.” See DairyLine.com, December 24, 2010; Worcester Business Journal, December 27, 2010; and Burlington…
