A federal magistrate in New York has recommended that the district court deny the class certification motion filed by plaintiffs who allege either personal or economic injury from the purchase of frozen ground beef products purportedly tainted with E. coli. Patton v. Topps Meat Co., No. 07-654 (W.D.N.Y., recommendation entered May 27, 2010). The defendants include the meat processor and a number of retailers, and the claims are based on a 2007 recall involving more than 20 million pounds of ground beef. Forty cases of E. coli infection in eight states were allegedly traced to the product. The plaintiffs sought to certify two nationwide classes of those who consumed the product and have personal injury claims and those who purchased the products subject to the recall and allege economic losses. Because specific causation, that is, “whether the contaminated meat caused the personal injuries of the individual class members,” would require an…
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A study recently published in the American Heart Association’s Circulation journal purportedly shows that consumption of processed meats “is associated with higher incidence of [coronary heart disease] and diabetes mellitus.” Renata Micha, et al., “Red and Processed Meat Consumption and Risk of Incident Coronary Heart Disease, Stroke, and Diabetes Mellitus. A Systematic Review and Meta-Analysis,” Circulation, May 17, 2010. The Harvard researchers apparently reviewed some 1,600 studies involving about 1.2 million subjects and found that the consumption of just 50 g per day of processed meat, such as one hot dog, was associated with a 42 percent higher risk of developing heart disease. They found no increased risk associated with the consumption of unprocessed red meats and reportedly suggested that the difference may be explained by the levels of salt and nitrate preservatives found in cold cuts, bacon and sausage. The president of the American Meat Institute, which objected to the findings,…
The Ninth Circuit Court of Appeals has apparently denied the National Meat Association’s request that the entire court review a recent panel decision which lifted a preliminary injunction that prevented California from enforcing a law prohibiting slaughterhouses from taking, processing or selling nonambulatory animals. Additional details about National Meat Association v. Brown, No. 09-15483 (9th Cir. March 31, 2010), appear in Issue 344 of this Update. The National Meat Association indicated in a May 18 press release that it intends to ask the U.S. Supreme Court to review the matter.
A woman featured in a 2009 New York Times article that was part of a Pulitzer Prize-winning series on food safety has reportedly settled her claims against Cargill, Inc., which allegedly produced the E. coli-contaminated hamburger that left her paralyzed with neurological problems and kidney damage. Represented by plaintiffs’ attorney William Marler, Stephanie Smith is a former dance instructor now confined to a wheelchair. Marler claimed that her medical bills have already totaled more than $2 million and that she will require additional rehabilitation and multiple transplants. The terms of the settlement, which must be approved by a court, are apparently confidential. Marler was quoted as saying, “Stephanie’s tragedy has taken on a life of its own, and hopefully it will continue to focus people on why food safety is important.” Cargill reportedly said in a joint statement that it “deeply regrets” her injuries and has invested in excess of…
According to news sources, a federal court in New Jersey has dismissed putative class claims filed by a vegan advocacy organization on behalf of state residents alleging consumer fraud against companies that sell hot dogs and processed meats. The Cancer Project, identified as an affiliate of the Physicians Committee for Responsible Medicine (PCRM), had asked the court to order companies such as Nathan’s Famous, Kraft Foods/Oscar Mayer, Sara Lee, ConAgra Foods, and Marathon Enterprises, to warn consumers that “Consuming hot dogs and other processed meats increases the risk of cancer.” The case was filed in a state court in July 2009; more information is available in issue 312 of this Update. A spokesperson for the American Meat Institute praised the court’s action and reportedly said, “Meat products are regulated and inspected by the U.S. Department of Agriculture and bear the federal government’s seal of inspection, showing they are wholesome and…
The U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) has issued a directive that revises its list of suitable ingredients that can used in the production of meat, poultry and egg products. FSIS will update the directive quarterly by issuing revisions as opposed to amendments. FSIS has added hypobromous acid and oat filler as suitable ingredients for certain processes. Hyporomous acid, which can kill the cells of many pathogens, may be used in water or ice under specific conditions to process meat and poultry products. Oat filler can be used in various meat products where binders are permitted and in whole muscle meat products “not to exceed 3.5 percent of the product formulation.” Oat filler must be listed as an “isolated oat product” or “modified oat product” in the ingredients statement and whole muscle meat products must be descriptively labeled.
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has issued a proposed rule designed to enhance the safety of meat and poultry products. The proposal would require that regulated establishments (i) promptly notify FSIS if any unsafe, unwholesome or “misbranded meat or poultry product has entered commerce”; (ii) “prepare and maintain current procedures for the recall of meat and poultry products produced and shipped by the establishment”; and (iii) “document each reassessment of the establishment’s process control plans, that is, its Hazard Analysis and Critical Control Point plans.” According to a March 25, 2010, Federal Register notice, the proposed rule is needed because (i) “FSIS believes that prompt notification that adulterated or misbranded product has entered commerce is an important prerequisite for effective action to prevent such product from causing harm”; (ii) “having established procedures will help establishments to conduct effective and efficient recalls, should it be…
According to a news source, a putative class action has been filed against retailer Loblaw and meat processor Siena Foods Ltd. following a listeriosis outbreak that sickened a number of Canadian consumers and led to a nationwide recall of salami and prosciutto products. While one press outlet has indicated that the bacterium which sickened two individuals has been matched genetically to the Siena meat, another reports that none of the recent five listeriosis-related deaths has been linked to Siena products. The lawsuit apparently alleges that Siena was aware of its products’ “potential toxicity” but failed to inform consumers, deciding instead to advise its distributors. Siena Foods is apparently closing its facility the weekend of March 20-21, 2010, to sanitize the plant. Meanwhile, the Canadian Food Inspection Agency is reportedly trying to hire new meat inspectors to increase its inspections of some 80 meat-processing plants. The United States requires inspections every…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) held a March 10, 2010, public meeting to discuss agency procedures “for identifying suppliers of source material used to produce raw beef product that FSIS has found positive for Escherichia coli (E. coli) O157:H7.” FSIS announced the meeting as part of its ongoing efforts to evaluate “the effectiveness of its policies and procedures in responding to findings that raw beef is positive for E. coli O157:H7.” In particular, FSIS intends to issue “new instructions to Enforcement, Investigations, and Analysis Officers (EIAOs) to conduct additional verification activities at suppliers in response to positive E. coli O157:H7 results.” The agency will accept public input on these issues until May 7, 2010. See FSIS Press Release, March 3, 2010; Federal Register, March 8, 2010.
A California court of appeal recently determined that the Federal Meat Inspection Act (FMIA) preempts point-of-sale or other warning labels on meat products under Proposition 65 (Prop. 65). Am. Meat Inst. v. Leeman, No. D053325 (Cal. Ct. App., decided December 22, 2009). In 2004, Whitney Leeman notified a number of meat processors and retailers in California that she intended to file a citizen suit against them alleging violations of Prop. 65 for their failure to provide warnings that their beef products contained dioxins and PCBs, chemicals known to the state to cause cancer or reproductive toxicity. The companies’ trade association filed a complaint seeking declaratory relief, and the trial court, finding implied, but not express, federal preemption, granted the association’s motion for summary judgment. The court of appeal focused for the most part on defining “labeling,” because Leeman argued that point-of-sale warnings do not constitute labeling under the FMIA, which contains…
