A federal court in New York has decided to allow most parts of a new state bottle-deposit law to take effect, lifting a injunction that would have delayed implementation until April 2010. Int’l Bottled Water Ass’n v. Paterson, No. 09-4672 (S.D.N.Y., decided August 13, 2009). Additional details about the litigation challenging the law’s constitutionality appear in issue 305 of this Update. The court’s decision overturns an order entered in late May 2009 granting injunctive relief. According to a news source, the ruling means that soft drink and beer makers must now give the state 80 percent of the unclaimed 5-cent deposits, and store and redemption handling fees will increase from 2 cents to 3.5 cents per container. Water companies making products containing flavored water, vitamin water and artificial sweeteners have apparently been given until October 22 to comply with the law, unless they can prove compliance is impossible. They did…
Tag Archives New York
The Department of Justice (DOJ) is seeking to enjoin the operation of a cheese-processing facility in New York due to the Listeria monocytogene (L. mono) contamination of its Queso Hebra, Queso Fresco and Queso Cotija Molido cheeses. U.S. v. Peregrina Cheese, Inc., No. 09-2888 (E.D.N.Y., filed July 7, 2009). According to DOJ, state and federal inspections of the facility since at least 2004 have revealed serious sanitation problems. Because product samples and equipment surfaces tested positive for the same L. mono strain, Food and Drug Administration (FDA) analysts concluded that “the strain has formed a niche at Peregrina Cheese’s facility.” The owners have apparently refused to shut down the plant to properly sanitize it, claiming that the state food safety agency approved the “use of an antimicrobial agent as an additive in Peregrina Cheese’s Queso Fresco product.” The owners did not, however, provide “any information as to the level of use”…
A New York appeals court has dismissed a lawsuit that sought a declaration from the state agricultural department that foie gras is an adulterated food product which poses a risk to human health. In re: Humane Soc’y of the U.S., Inc. v. Brennan, No. 506189 (N.Y. App. Div., decided June 18, 2009). According to the court, the plaintiff lacked standing to bring the suit. The Humane Society and other interested parties had unsuccessfully petitioned the Commissioner of Agriculture and Markets to issue an adulterated food product declaration as to foie gras. A trial court dismissed the plaintiffs’ subsequent declaratory judgment action for lack of standing, and they appealed. According to the appeals court, to establish standing, “petitioners were required to demonstrate that the Commissioner’s declination to issue a declaratory ruling caused them an injury-in-fact different from the general public.” The court noted that commission declaratory rulings are discretionary and stated,…
Pilgrim’s Pride Corp. settled claims that its insurance carrier unjustifiably refused to pay a significant portion of coverage owed to the food company arising out of a Listeria outbreak. The insurance company that agreed to provide coverage to Pilgrim’s insurer for any bad faith claims successfully mounted against it has been granted a declaratory judgment of no liability. Cont’l Cas. Co. v. Ace Am. Ins. Co., No. 07-958 (S.D.N.Y., decided March 31, 2009). Apparently, Pilgrim’s insurer agreed to the essential terms of a settlement proposed by a mediator before seeking Continental’s consent to settle. Under Texas law, settlement agreements are legally enforceable when the parties have agreed on the amount of consideration to be paid and the release of claims. While Pilgrim’s insurer made minor modifications to the agreement after notifying Continental, the court found that the mediator’s proposal was a binding and enforceable settlement agreement. Because Pilgrim’s insurer did…
A Suffolk County, New York, legislative committee on March 3, 2009, voted unanimously to prohibit the packaging chemical bisphenol A (BPA) from polycarbonate baby bottles. According to published reports, the bill goes before the full Suffolk County Legislature next week. The vote would reportedly ban BPA from baby bottles and cups sold in the county that are intended for children ages 3 or younger. Similar bills are under consideration in Washington state, Minnesota and Connecticut. See Foodproductiondaily.com, March 4, 2009.
The district court judge to whom this obesity-related litigation was reassigned in 2008 has dismissed motions to compel filed by plaintiffs and defendants, but has given the parties leave to renew after the court rules on motions for class certification. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., filed Sept. 30, 2002). Judge Robert Sweet recused himself from the proceedings following the pre-trial conference, held April 9, 2008, and the matter was reassigned to Judge Sidney Stein in May. The plaintiffs, a putative class of obese and overweight teens, alleged that the fast-food company misled them with deceptive ads. They are seeking damages for obesity-related health problems. Information about the lawsuit has periodically appeared in this Update since it was filed in 2002. It has been appealed twice to the Second Circuit Court of Appeals, its issues have been narrowed, and it has been followed closely by consumer advocates and the food…
The Second Circuit Court of Appeals has affirmed a lower court ruling that rejected the restaurant industry’s preemption and First Amendment challenge to New York City’s health code provision mandating that certain restaurant chains post calorie information on their menu boards. New York State Rest. Ass’n v. NYC Bd. of Health, No. 08-1892 (2d Cir., decided February 17, 2009). The rule has been in effect since July 2008 and applies to restaurants that are part of chains with at least 15 outlets nationwide. The New York State Restaurant Association contended that the rule was preempted by the Nutrition Labeling and Education Act and infringed its members constitutional rights by compelling speech. According to the court, “In requiring chain restaurants to post calorie information on their menus, New York City merely stepped into a sphere that Congress intentionally left open to state and local governments. Furthermore, although the restaurants are protected…
New York Governor David Paterson (D) has reportedly proposed an 18 percent tax on soft drinks and other non-diet sweetened beverages as part of his plan to lessen a $1.5 billion shortfall in the state’s annual budget. The tax would purportedly raise $404 million, but industry leaders have called the maneuver a “money grab” that would hurt union jobs at major bottlers located in the state. “We think that everybody has to keep in mind that we’re in a recession, and in an economy like this, the last thing we should be doing is raising taxes on everyday needs like clothing and groceries. That doesn’t wash with the consumer,” an American Beverage Association spokesperson was quoted as saying. See Times Union, December 14, 2008; Advertising Age, December 15, 2008. Meanwhile, a recent New York Times op-ed column hails the proposal as a “landmark effort that, if other states follow, could help…
A multidistrict litigation court (MDL) in New York has dismissed putative class claims filed against PepsiCo., Inc. for allegedly misrepresenting the source of its Aquafina® bottled water, “by using a label designed to create the impression that the water came from a mountain source and failing to inform consumers that the true source . . . was public drinking supplies commonly known as ‘tap water.’” In re: PepsiCo., Inc. Bottled Water Mktg. & Sales Practices Litig., MDL No. 1903 (S.D.N.Y., decided December 5, 2008). The court determined that plaintiffs’ state-law unfair and deceptive trade practices claims were expressly preempted under the Food, Drug, and Cosmetic Act (FDCA). According to the court, “the FDCA’s statutory framework and regulatory history . . . reveal that the FDA specifically addressed the disclosure of source information and determined, in its expert opinion, that representations of source are immaterial in the context of purified water.”…
The City University of New York Campaign Against Diabetes and the Public Health Association of New York City (PHANYC) have published a report, titled Reversing Obesity in New York City: An Action Plan for Reducing the Promotion and Accessibility of Unhealthy Food, that aims to educate policy makers, advocates and health professionals about food policy issues. Focused on lowering obesity rates in New York City, the report asks local government to: (i) “create local healthy food zones” in schools, churches, health centers, and other public institutions; (ii) “use zoning laws to reduce density of unhealthy food outlets”; (iii) “strengthen oversight of deceptive health claims in food advertising”; (iv) “discourage racial/ethnic targeting of unhealthy food advertisements”; (v) “tax unhealthy food such as sweetened soda and other beverages”; (vi) “support counter-advertising campaigns against unhealthy foods”; and (vii) “restrict advertising and promotion of unhealthy food.” In addition, CUNY Campaign Against Diabetes and PHANYC…
