A federal court in Iowa has denied a motion seeking to preliminarily enjoin the Food and Drug Administration (FDA) from enforcing regulations prohibiting the interstate sale of raw milk. Farm-to-Consumer Legal Defense Fund v. Sebelius, No. 10-4018 (N.D. Iowa, decided January 23, 2012). The plaintiffs, who either produce or consume raw milk, filed their motion under the All Writs Act, claiming that FDA has taken enforcement actions against third parties in other jurisdictions while the plaintiffs’ lawsuit challenging the validity of the rules is pending and that such action usurps the court’s jurisdiction to decide whether the interstate sale of raw milk is legal. According to the court, “[t]he plaintiffs have not cited, and I have not found, any authority for the proposition that the first federal court to entertain a challenge to a federal regulation has the power to forestall enforcement of that regulation by a federal agency in other…
Tag Archives milk
Switzerland-based Nestlé S.A. has announced plans to fund a dairy farming institute in Shuangcheng, China, to help the region’s suppliers expand their businesses and source “high quality milk sustainably.” According to a January 11, 2012, press release, the new institute “aims to be the country’s leading dairy training center, offering teaching courses from national and international experts.” The company and city of Shuangcheng are reportedly investing 2.5 billion Chinese yuan in the project, which will also guarantee bank loans for purchasing additional cattle and increase the “training and technical assistance already provided to local farmers.” As further noted in a January 13, 2012, Wall Street Journal article, Nestlé evidently “hopes to increase its market share in China’s dairy industry” and believes larger farms will help “boost production and efficiency while projecting a reputation for safety.” Other foreign companies such as Fonterra Co-Operative Group Ltd. have likewise indicated interest in more consolidated…
The California Department of Food and Agriculture (CDFA) has issued a statewide recall and quarantine order for raw or unpasteurized milk products implicated in five cases of E. coli O157:H7. According to CDFA, the recall includes raw milk, raw butter, raw cream, raw colostrum, and a raw product called “Qephor” produced by Fresno-based Organic Pastures dairy, which is barred from selling these items “until further notice.” “While laboratory samples of Organic Pastures raw milk have not detected E. coli O157:H7 contamination, epidemiologic data… links [sic] the illnesses with Organic Pastures raw milk,” states a November 15, 2011, CDFA press release explaining that the five known cases apparently involved children whose only common food exposure was unpasteurized milk. The agency has also started “a complete inspection at Organic Pastures dairy—of all facets of operations, from the cows to the bottling plant,” where the quarantine will only be lifted once the facility…
Seeking to represent a nationwide class of consumers, a New York resident has filed a lawsuit in a New Jersey federal court, alleging that Smart Balance, Inc. falsely labels its fat-free milks enhanced with omega-3 as “Fat Free” when they actually contain 1 gram of fat per serving. Stewart v. Smart Balance, Inc., No. 11-06174 (D.N.J., filed October 19, 2011). Acknowledging that the nutrition facts label indicates that the products contain 1 gram of fat, the plaintiff nonetheless contends that the front-of-package representations are “intentionally confusing and misleading.” She alleges that she paid more for the company’s products than she would have otherwise paid for alternative milk options because she relied on the “Fat Free” labels, which she contends violate federal labeling rules. Alleging violation of the New Jersey Consumer Fraud Act, unjust enrichment, breach of warranty, and injunctive relief, the plaintiff seeks class certification; compensatory, treble and punitive damages; disgorgement;…
According to a news source, two antitrust lawsuits were filed in a California federal court this week alleging that dairy trade groups and coops manipulated dairy prices between 2003 and 2010 under a program that slaughtered more than 500,000 cows. The suits reportedly allege that the National Milk Producers Federation and major dairy farmer cooperatives, under a “dairy herd retirement program,” cost consumers in excess of $9.5 billion. Plaintiff’s counsel Steve Berman released a statement claiming that the lawsuits, brought on behalf of individual consumers in California, New York and Wisconsin, as well as Compassion Over Killing, “will protect consumers from artificially inflated milk prices and also will prevent the unnecessary and shameful killing of tens of thousands of cows each year.” One of the lawsuits, Edwards v. National Milk Producers Federation, seeks to certify 27 state classes and a District of Columbia class, alleging violation of state antitrust and…
According to a news source, Chinese officials have arrested about 2,000 people and shut down almost 5,000 food production facilities since April 2011, in an effort to stop the industry’s use of illegal food additives. The initiative apparently followed scandals involving pork so full of bacteria that it allegedly glowed in the dark and milk laced with melamine that led to the deaths of least six infants and sickened more than 300,000 in 2008. The Chinese government claims that nearly 6 million food businesses have been inspected and “underground” food production and storage sites destroyed. See Agence France Presse, August 4, 2011.
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…
A California woman has filed a putative nationwide class action against the company that makes Muscle Milk® beverages and protein bars, alleging that promotions touting the products as “high performance” and “nutritious snacks” are false and misleading because they contain as much fat and calories as Krispy Kreme® doughnuts. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., filed July 18, 2011). The company apparently markets the products as “a ‘meal replacement’ to provide ‘healthy sustained energy’” and allegedly “suggests that these fat-filled Products will help people lose weight, telling consumers, among other things, that the Products will help people ‘Go from cover it up to take it off.’” According to the complaint, the named plaintiff purchased the products for six months and consumed them “before workouts, after workouts, in between meals as a snack, and sometimes as a meal replacement.” She contends that she did so in reliance on the…
The Los Angeles Unified School District has reportedly removed flavored milk from school menus in an effort to combat rising rates of childhood obesity. The school board approved a five-year, $100 million dairy contract excluding chocolate and strawberry milk in favor of low-fat and nonfat plain milk, and soy and Lactaid products. Beginning in the 2011-12 school year, the menu overhaul will also include more vegetarian and ethnic fare and eliminate corn dogs, chicken nuggets and other breaded items. See Los Angeles Times, June 15, 2011.
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,…
