The Wisconsin Supreme Court has decided which of the parties sued over an E. coli outbreak that sickened dozens of Sizzler Steak House patrons in 2000 and caused the death of a 3-year-old are liable for consequential damages, indemnity and costs under various supply chain and insurance contracts. Kriefall v. Sizzler USA Franchise, Inc., Nos. 2009AP1212 & 2010AP491 (Wis., decided June 29, 2012). Among other matters, the court ruled that Sizzler was entitled to (i) recover consequential damages for the meat supplier’s breach of implied warranties despite limiting language in the continuing guaranty provision of their contract, and (ii) indemnity from the meat supplier for Sizzler’s advance partial payment to the family of the deceased child “because the payment was not voluntary and the jury found that Sizzler was zero percent liable for the E. coli contamination.” The court also ruled that Sizzler could not recover its attorney’s fees despite a jury finding…
Tag Archives New York
The Natural Resources Defense Council (NRDC) has filed a lawsuit against the Food and Drug Administration (FDA) and the Center for Veterinary Medicine (CVM) alleging that they have failed, in response to a Freedom of Information Act (FOIA) request, to produce documents pertaining to risk assessments for antibiotics used in livestock production. NRDC v. FDA, No. 12-4757 (S.D.N.Y., filed June 18, 2012). Seeking a declaration that the defendants violated FOIA and an order that they disclose “all responsive, non-exempt records to plaintiff within fifteen days,” NRDC refers to industry guidance that FDA issued in 2003 on “assessing the safety of antimicrobial new animal drugs with regard to the microbiological effects on bacteria of human health concern” and actions the defendants have taken since then relying on the guidance. After FDA acknowledged in a December 2011 Federal Register notice that it had begun “to look at the safety of some .…
The director of Yale University’s Rudd Center for Food Policy and Obesity recently authored an article in The Atlantic arguing in favor of the New York City Department of Health and Mental Hygiene’s (DOHMH) proposal to limit the size of sugar-sweetened beverages (SSBs) sold in restaurants and other food service establishments. According to Kelly Brownell, industry opposition to the measure is rooted in concern over profits, which “increase as people buy bigger portions” since “the cost for the soda companies and restaurants to serve larger sizes may be mere cents for a larger cup and the extra liquid.” As a result, he says, soda manufacturers have banded together to voice their opposition to the measure, a campaign that Brownell anticipates will include lawsuits as well as “new industry-funded studies that will show, contrary to the large number of existing studies, that portion size does not have an effect on eating or…
The New York City Police Department has reportedly noted an uptick in the number of bee swarms scouring the five boroughs in search of a new home, a phenomenon which experts have attributed to unusually warm weather as well as an increase in residential apiaries. According to a June 18, 2012, New York Times article, the department’s “unofficial beekeeper in residence” has already handled 31 swarms since mid-March, more than twice the number reported last season. As the Times explained, “Officer [Anthony Planakis] said the bees he had collected were wild, but some beekeepers believe they were fleeing the poorly managed hives that have proliferated on rooftops, in backyards and on balconies since the city lifted a decade-long ban on raising Apis mellifera—the common, nonaggressive honeybee—in March 2010.” With 182 hives registered with the Department of Health and Mental Hygiene and perhaps as many as 400 total, expert beekeepers have…
The New York City Board of Health and Mental Hygiene (DOHMH) has called a July 24, 2012, public hearing to gather feedback on Mayor Michael Bloomberg’s recommendation to limit the size of sugar-sweetened beverages sold at local food service establishments. The 11 member board reportedly voted unanimously at a June 12, 2012, meeting to publish the proposal, which would amend Article 81 of the Health Code to establish a maximum serving size of 16 ounces for sugary non-alcoholic drinks and all self-service cups. If adopted by DOHMH on September 13, the amendment would apply to restaurants, food carts, delis, movie theaters, stadiums, and arenas while also imposing a $200 fine for each violation of the code. According to the notice of public hearing, the proposal seeks to address rising obesity rates among city residents by “reacquainting New Yorkers with more appropriate portion sizes.” The plan has apparently drawn support from…
A California resident has filed a putative class action against Starbucks Corp. alleging that the company deceived consumers by failing to disclose that some of its products were made with cochineal extract, a common food-coloring ingredient made from crushed insects. Anderson v. Starbucks Corp., No. BC485438 (Cal. Super. Ct., Los Angeles Cty., filed May 25, 2012). Seeking to represent a nationwide class and statewide subclass of consumers, the plaintiff claims that she and the class members, had they known about the company’s use of the ingredient, would not have purchased the products for a number of reasons, including objections to consuming animal products, allergic responses to the ingredient or “sheer disgust.” Alleging violations of the California Unfair Business Practices Act and False Advertising Act, unjust enrichment, fraud by omission/concealment, and violation of California’s Consumers Legal Remedies Act, the plaintiff seeks disgorgement, restitution, compensatory and punitive damages, payment to a cy pres fund,…
A federal court in New York has determined that the Food and Drug Administration (FDA) arbitrarily denied petitions filed by advocacy organizations in 1999 and 2005 requesting the initiation of proceedings to withdraw approval from certain uses of antibiotic drugs in livestock. Nat. Res. Defense Council v. FDA, No. 11-3562, (S.D.N.Y., decided June 1, 2012). The ruling follows the court’s March 2012 grant of summary judgment to the plaintiffs on their first claim for relief. Additional information about that ruling appears in Issue 432 of this Update. The most recent ruling relates to the third claim for relief, that is, whether FDA violated the Administrative Procedure Act when it denied the two petitions “requesting that the FDA withdraw approval of certain uses of certain classes of antibiotics in food-producing animals.” The court first determined that it had subject matter jurisdiction over the claim, disagreeing with FDA’s assertion that its November 2011 decision…
New York City Mayor Michael Bloomberg’s (I) Task Force on Obesity recently garnered national attention by proposing to limit the size of sugar-sweetened beverages sold at local food service establishments. In a May 31, 2012, report outlining several public health initiatives, the Task Force claims that “[s]ugary drink portion sizes have exploded over recent years” and urges a maximum size for these beverages as a way “to help reacquaint New Yorkers with ‘human size’ portions.” To this end, Bloomberg has introduced a measure that—if adopted by the city’s Board of Health at a June 12 hearing—would prohibit restaurants, food carts, delis, movie theaters, stadiums, and arenas from offering sugar-sweetened beverages in sizes that exceed 16 ounces. “Limiting the size of sugary drinks to no more than 16 ounces at food service establishments will help us confront the obesity and diabetes epidemics, which now affect millions of New Yorkers,” said Health…
The Second Circuit Court of Appeals has determined that a New York law enacted in 2004, following the invalidation of a prior version, does not violate the Establishment or Free Exercise Clauses of the U.S. Constitution and is not unconstitutionally vague. Commack Self-Service Kosher Meats, Inc. v. Hooker, No. 11-3517 (2d Cir., decided May 10, 2012). The previous law, which defined “kosher” in terms of orthodox Hebrew religious requirements and required adherence to them, was found to (i) advance religion, i.e., the dietary restrictions of Orthodox Judaism, and (ii) inhibit religion “by preventing labeling of food products as kosher that did not meet the Orthodox Jewish religious requirements.” The newer version simply required those marketing their food products as “kosher” to label them as kosher and to “identify the individuals certifying their kosher nature.” The new law did not “define kosher or authorize state inspectors to determine the kosher nature…
A federal magistrate judge in New York has ordered the Food and Drug Administration (FDA) to begin proceedings to withdraw approval for the subtherapeutic use of certain antibiotics in animal feed, agreeing with the Natural Resources Defense Council (NRDC) and a coalition of advocacy organizations that the agency had a statutory duty to hold withdrawal proceedings after issuing notices in 1977 of its intent to withdraw approval because the use of such drugs had not been shown to be safe. NRDC v. FDA, No. 11-3562 (S.D.N.Y., decided March 22, 2012). According to the court, “if the Secretary finds that an animal drug has not been shown to be safe, he is statutorily required to withdraw approval of that drug, provided that the drug sponsor has notice and an opportunity for a hearing.” Further details about the lawsuit appear in Issue 396 of this Update. Questions about whether the agency has…
