A state court has denied a petition to overturn a New York City ban on the use of expanded polystyrene foam (EPS) containers, finding the city's determination “was a painstakingly studied decision and was in no way rendered arbitrarily or capriciously.” In re Application of Rest. Action All. v. City of New York, No. 100731/2015 (N.Y. Super. Ct., New York Cty., entered June 5, 2018). In 2015, the same court vacated and annulled findings by the city commissioner of sanitation in support of the ban because of “shortfalls” in the findings, remanding the matter for reconsideration. “This time,” the court said, “the Commissioner’s findings are based on reviews of petitioners’ evidence and on [the sanitation department’s] further studies and research.” Among the city’s findings, the court said, were (i) a 30-year history of “failure of subsidized markets of foam recyclers”; (ii) the lack of market for post-consumer recycled foam, particularly soiled…
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The U.S. Court of Appeals for the Second Circuit has reversed a lower court’s dismissal of a proposed class action alleging Whole Foods Market Group, Inc. overcharges for prepackaged foods. John v. Whole Foods Mkt. Grp., Inc., No. 16-0986 (2nd Cir., order entered June 2, 2017). The plaintiff alleged that he routinely purchased prepackaged foods at two Whole Foods stores in Manhattan but learned that a New York City Department of Consumer Affairs (DCA) investigation had found systematic overcharging for some foods. Details on the lower court’s dismissal appear in Issue 596 of this Update. The Second Circuit held that the lower court dismissed the case prematurely because the plaintiff did not need to prove the accuracy of the DCA report or defend its methodology at the pleading stage; he was required only to plausibly allege that he overpaid for at least one product, which satisfies the “low threshold” required…
The New York City Department of Consumer Affairs (DCA) has alleged that Whole Foods Market, Inc. “routinely overstated the weights of its prepackaged products—including meats, dairy and baked goods— resulting in customers being overcharged.” According to a June 24, 2015, press release, DCA found mislabeled weights on 80 different types of products sold at New York City locations, with 89 percent purportedly failing to meet federal standards “for the maximum amount that an individual package can deviate from the actual weight.” “The overcharges ranged from $0.80 for a package of pecan panko to $14.84 for a package of coconut shrimp,” claims the agency. “The fine for falsely labeling a package is as much as $950 for the first violation and up to $1,700 for a subsequent violation. The potential number of violations that Whole Foods faces for all pre-packaged goods in the NYC stores is in the thousands.” In particular,…
The New York City (NYC) Council has reportedly adopted legislation that would prohibit the use of foam food containers by 2015, if city sanitation officials determine that recycling the substance is not feasible. Favored by outgoing Mayor Michael Bloomberg, the legislation referred to as the Styrofoam ban—would include a six-month grace period, during which only warnings would be issued, as well as a hardship exemption for nonprofits and small businesses that could request a one-year renewable waiver. Bloomberg thanked the city council for approving the measure, saying “This legislation not only eliminates a product that cannot be recycled in New York City, it is a giant step forward in the City’s effort to recycle organic waste. Foam pollutes the waste stream, making it harder to recycle food waste as well as metal, glass and plastic.” See NYC Mayor Michael Bloomberg News Release and Law360, December 19, 2013. Issue 508
The U.S. Department of Agriculture (USDA) has rejected New York City Mayor Michael Bloomberg’s (I) plan to prohibit residents from using food stamps to buy sugar-sweetened beverages and soda. In October 2010, Bloomberg and state officials had proposed a two-year experiment that would exclude the drinks from USDA’s Supplemental Nutrition Assistance Program (SNAP) in an effort to reduce obesity. In an August 19, 2011, letter to a state official, SNAP’s associate administrator Jessica Shahin wrote that the waiver was denied because of concerns that the “scale and scope” of the plan were “too large and complex” to implement and evaluate. Asserting that it would be too difficult to assess the ban’s effectiveness, Shahin instead suggested that USDA collaborate with the city on “anti-obesity intervention targeting consumption and associated behaviors while encouraging healthy choices.” Expressing disappointment with the decision, Bloomberg said, “We think our innovative pilot would have done more to…
The National Salt Reduction Initiative (NSRI) has called on companies “to reduce the salt levels in 61 categories of packaged food and 25 classes of restaurant food,” issuing a list of proposed targets designed to cut the salt in these foods by 25 percent over five years. Led by the New York City Health Department, this partnership of cities, states and national health organizations apparently solicited input from the food industry in developing the proposed targets. NSRI will also accept additional comments until February 1, “especially from companies that have not yet participated in the target-setting process, as well as consumer organizations and other interested parties.” “Americans consume roughly twice the recommended limit of salt each day–causing widespread high blood pressure and placing millions at risk of heart attack and stroke–in ways that they cannot control on their own,” stated a January 11, 2010, press release, which noted that “some popular…
