While a federal court in Florida has dismissed a putative class action alleging that Target Corp. violates consumer fraud laws by selling honey that does not conform to the state’s honey standard, it gave the plaintiff leave to amend the complaint and also found that (i) the plaintiff had standing to bring the claims, (ii) Federal Rule of Civil Procedure 9(b)’s heightened pleading standard did not apply, and (iii) the claims were not preempted by federal law. Guerrero v. Target Corp., No. 12-21115 (S.D. Fla., decided September 4, 2012). The court dismissed the complaint without prejudice because it failed “to provide any more specific details regarding how Plaintiff knows that Defendant’s honey did not contain pollen. Thus, the Court agrees with Defendant’s argument that Plaintiff’s Complaint, as currently plead (sic), fails to state a claim because it does not provide fair notice to Defendant regarding the factual basis for Plaintiff’s…
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Determining that it lacks jurisdiction under the Class Action Fairness Act (CAFA) to hear state-law claims alleging consumer fraud in the sale of honey, a federal court in California has remanded to state court a putative class action filed against CVS Caremark Corp. Overton v. CVS Caremark Corp., No. 12-0121 (C.D. Cal., decided April 24, 2012). While the case is one of several that may be transferred to a multidistrict litigation panel (MDL No. 2374) under a motion pending before the Judicial Panel on Multidistrict Litigation, the court retained the authority to decide the jurisdiction issue. To meet its burden of showing that the lawsuit satisfied CAFA’s amount-in-controversy requirement, that is, “the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs,” the defendant apparently relied on the declaration of a vice president who calculated that the company sold $508,995 worth of the product every…
This article considers how those marketing honey in the European Union (EU) may proceed after the European Court of Justice in September 2011 determined that honey with trace amounts of pollen from genetically modified (GM) corn must undergo a full safety authorization before it can be sold to consumers. Highly critical of the court’s opinion, the author suggests that because it is based on a faulty factual premise involving how honey is produced and harvested, other courts would not necessarily be bound by its interpretation of Regulation (EC) No. 1829/2003, because a proper factual background would present a different case. He calls for amendments to the relevant regulations that would exempt honey from their requirements or establish an upper limit for pollen from GM crops in honey. The author also suggests that honey will be subject to authorization and labeling requirements only if GM-pollen is present and detected. But he…
“Maybe we’re too inclined to believe the worst about supermarket food,” writes NPR’s Dan Charles in a November 25, 2011, column about a recent Food Safety News report suggesting that most honey sold in the United States does not deserve the name. According to NPR, the article in question implied that producers use a process known as “ultrapurification” to remove pollen from honey, thus preventing “anyone from detecting illicit honey from China.” “Food that doesn’t deserve its name, processed beyond recognition, probably adulterated, maybe unsafe, of unknown origin. It sounded so right, plenty of people decided that it just had to be true,” opines Charles, who upon further investigation found the entire story “misleading” at best. His research showed that most packers use diatomaceous earth before filtration to eliminate the microscopic particles of pollen, dust and bee parts which otherwise promote crystallization. Moreover, audits of the raw or pretreated honey…
A November 7, 2011, Food Safety News report has questioned the practice of filtering honey to remove pollen, alleging that “more than three-fourths of the honey sold in U.S. grocery stores isn’t exactly what the bees produce.” According to investigative reporter Andrew Schneider, the ultrafiltering process “is a spin-off of a technique refined by the Chinese” that makes it impossible to determine the honey’s source. As a result, the U.S. Food and Drug Administration does not consider ultra-filtered products to be “honey,” although it does not check domestic honey for pollen. Food Safety News sent 60 honey samples bought in 10 states and Washington, D.C., to Texas A&M melissopalynologist Vaughn Bryant for pollen analysis. The results purportedly showed that 76 percent of samples bought at groceries stores had all the pollen removed, while 100 percent of samples from drugstores and 100 percent of individually packaged samples for restaurants contained no…
A federal court in Illinois has determined that the government did not allege facts sufficient to pierce the corporate veil of related U.S. and foreign corporations and thus could not bring the foreign corporations before the court on charges of avoiding $80 million in customs duties on honey imported into the United States between 2002 and 2009. United States v. Alfred L. Wolff GMBH, No. 08-417 (N.D. Ill., decided September 26, 2011). A federal grand jury indicted the foreign defendants and a U.S. corporate entity on 44 counts in August 2010. The U.S. entity’s attorneys voluntarily accepted service on its behalf and on behalf of its parent and then appointed, via a shareholder resolution, a limited-authority corporate representative to appear before the court and enter a not-guilty plea for the U.S. defendants. This representative did so, and, immediately after the arraignment, the government served the representative with summonses for each of…
“A third or more of all the honey consumed in the U.S. is likely to have been smuggled in from China and may be tainted with illegal antibiotics and heavy metals,” writes reporter Andrew Schneider in an August 15, 2011, Food Safety News article investigating the U.S. honey trade. Building on earlier media stories such as a January 5, 2011, Globe and Mail exposé covered in Issue 377 of this Update, the latest feature includes U.S. Customs import data indicating, for example, that the United States “imported 208 million pounds of honey over the past 18 months,” with almost 60 percent or 123 million pounds coming “from Asian countries—traditional laundering points for Chinese honey,” and “45 million pounds from India alone.” “This should be a red flag to FDA [the Food and Drug Administration] and the federal investigators. India doesn’t have anywhere near the capacity—enough bees—to produce 45 million pounds…
According to an advocate general opinion, which is not binding on the European Union (EU) Court of Justice, honey that contains genetically modified organisms (GMOs) due to the proximity of the hives to experimental GMO maize fields is considered a food produced from a GMO and therefore cannot be marketed unless authorized. Heinz Bablock v. Freistaat Bayern, No. C-442/09 (Advocate General’s Opinion, issued February 9, 2011). The case was referred from a German administrative court considering the claim of a beekeeper who alleged that the state of Bavaria had rendered his apicultural products unfit for marketing or consumption by growing the experimental GMO maize near his hives. The maize DNA was apparently detected in samples of his honey. While the advocate general determined that pollen from GMO maize is “no longer viable and is thus infertile” and as such “cannot be regarded as a GMO,” still its presence renders the…
“As crime sagas go, a scheme rigged by a sophisticated cartel of global traders has all the right blockbuster elements: clandestine movements of illegal substances through a network of co-operatives in Asia, a German conglomerate, jet-setting executives, doctored laboratory reports, high-profile takedowns and fearful turncoats,” opens Globe and Mail food reporter Jessica Leeder in this exposé tracing the honey market from Chinese beekeepers, who are allegedly “notorious” for using banned antibiotics and diluting their products, to North America, where they are “baked into everything from breakfast cereals to cookies and mixed into sauces and cough drops.” Leeder claims that imported honey sold in North America “is more likely to be stamped as Indonesian, Malaysian or Taiwanese, due to a growing multimillion dollar laundering system designed to keep the endless supply of cheap and often contaminated Chinese honey moving into the U.S., where tariffs have been implemented to staunch the flow…
North Carolina has reportedly become the most recent state to adopt a definition for “pure honey” that beekeepers hope will get fake honey off the market. Because Americans consume some 350 million pounds of honey annually, but domestic producers produce just 150 million pounds, there is apparently a financial incentive for importers and others to sell honey cut with additives such as corn syrup. Other states that currently regulate honey include California, Florida and Wisconsin. While the Food and Drug Administration has undertaken efforts to stop the sale of chemically contaminated honey, the agency is also reportedly considering a petition seeking to establish a national standard. See USA Today, September 25, 2010.
