Shook Partner Jim Muehlberger and Associate Iain Kennedy have co-authored an article for Law360 about slack-fill regulation and litigation. They note that although some product packaging uses unused space within a bottle or bag for functional purposes—transportation or theft protection, for example—companies have increasingly been targeted for litigation under the Fair Packaging and Labeling Act or U.S. Food and Drug Administration regulations. “All of the legitimate explanations in the world have not deterred some in the plaintiffs’ bar, who have seized upon slack-fill litigation as the newest product packaging and labeling class action du jour,” Muehlberger and Kennedy write. The article summarizes the litigation landscape, including existing putative class actions challenging potato chip, eye drop and deodorant packaging, and notes that plaintiffs usually allege some combination of misrepresentation, fraud, unjust enrichment, breach of warranties and consumer-protection statutory claims. Muehlberger and Kennedy offer ideas for minimizing slack-fill litigation risk, including considering…
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A study involving 2,874 pregnant women enrolled in the Odense Child Cohort has noted “significant associations” between serum concentrations of perfluorinated alkylated substances (PFASs) and miscarriage. Tina Kold Jensen, et al., “Association between Perfluorinated Compound Exposure and Miscarriage in Danish Pregnant Women,” PLOS One, April 2015. According to the study, two types of PFASs—perfluorooctanoic acid (PFOA) and perfluorooctanoic sulfate (PFOS)—widely used in consumer products and food packaging for their stain-, grease- and water resistance properties are now being replaced with newer PFASs such as perfluorononanoic acid (PFNA) and perfluorodecanoic acid (PFDA), which have shorter elimination half lives in humans. In particular, researchers report that women in the highest tertile for PFNA and PFDA exposure in pregnancy “had odds ratios of 16.5 percent ... and 3.71 percent, respectively, as compared to the lowest tertile.” Though these associations still require confirmation, the study authors warn that their findings “are of potential public…
A federal jury in Pennsylvania has found that H.J. Heinz Co. did not appropriate the idea of a dual-opening condiment packaging, the “Dip & Squeeze” packet, from a man who proposed a similar idea during a meeting with the company. Wawrzynski v. H.J. Heinz Co., No. 11-1098 (W.D. Penn., verdict entered April 1, 2015). The plaintiff claimed that after he presented his “Little Dipper” packaging to the company in 2008, Heinz commissioned him to create samples for testing then abruptly ended the relationship in 2009. The “Dip & Squeeze” packet was introduced in 2010. After a three-day trial, the jury found that the man’s idea was novel but different from the product that Heinz ultimately pursued. Additional details on the case appear in Issues 531 and 552 of this Update. See Law360, April 1, 2015; Legal Intelligencer, April 2, 2015. Issue 560
The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the comment period about whether styrene meets the criteria for authoritative bodies listings under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) until April 29, 2015. OEHHA announced its intent to list styrene as a chemical known to the state to cause cancer under the authoritative bodies listing mechanism of Prop. 65 on February 27. Styrene is used in the manufacture of various consumer products, including polystyrene packaging, synthetic rubber and food containers. Two previous attempts to list styrene as known to cause cancer under Prop. 65’s Labor Code listing mechanism failed. The agency’s latest attempt relies on findings in the National Toxicology Program’s (NTP’s) 2011 Report on Carcinogens which concluded that styrene is “reasonably anticipated to be a human carcinogen” based on studies showing that inhalation and oral exposure to the chemical…
A California federal court has approved the proposed settlement in a class action alleging that Jamba Juice® mislabels its smoothie kits as “all natural” despite containing synthetic ingredients gelatin, xanthan gum, ascorbic acid, steviol glycosides, and modified corn starch. Lilly v. Jamba Juice Co., No. 13-2998 (U.S. Dist. Ct., N.D. Cal., settlement approved March 18, 2015). The December 2014 proposed settlement was reached three months after the court certified the class for liability but not for damages. Under the agreement, Jamba Juice® will remove “all natural” on the product packaging and the company website by March 31, 2015. Additional information about the settlement appears in Issue 547 of this Update. Issue 559
Citing research studies alleging links between exposure to bisphenol A and various adverse health effects, U.S. Sens. Dianne Feinstein (D-Calif.) and Patrick Leahy (D-Vt.) have introduced the BPA in Food Packaging Right to Know Act. “Knowledge is empowering, and knowledge about BPA ingredients can also stimulate further reforms by the marketplace,” Leahy was quoted as saying. Among other things, the draft bill would require the secretary of the Department of Health and Human Services to conduct a safety assessment of low-dose, long-term exposure to BPA and any resulting potential negative health effects on vulnerable populations (e.g., pregnant women, children, senior adults) as well any potential adverse health effects on populations with high exposure to the chemical, such as workers involved in product manufacturing processes. The proposal would also mandate labels on food packaging containing BPA to carry the warning statement: “This food packaging contains BPA, an endocrine-disrupting chemical, according to…
The French Directorate-General for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF) has released a guidance document detailing the implementation of new rules that ban the use of bisphenol A (BPA) in all food contact materials in their finished state as of January 1, 2015. The second part of a law that first prohibited BPA in products intended for children younger than age 3, the new rules apparently bar the use of BPA in (i) packaging and articles intended to come into contact with food, and (ii) containers and utensils, including kitchen utensils, tableware and dishes. These rules do not apply to industrial materials and equipment used in the production, processing, storage, or transportation of foodstuffs. See DGCCRF Guidance, December 8, 2014. In a related development, the European Food Safety Authority (EFSA) has announced that it has finalized a scientific opinion on BPA. Slated for release in January 2015, the…
The U.S. Food and Drug Administration (FDA) has updated its online bisphenol A (BPA) information to reaffirm its conclusion that the substance is safe for approved food-packaging uses. According to the revised statement, agency experts in toxicology, analytical chemistry, endocrinology, epidemiology, and other fields completed “a four-year review of more than 300 scientific studies” without finding any information that would “prompt a revision of FDA’s safety assessment of BPA in food packaging at this time.” “Based on FDA’s ongoing safety review of scientific evidence, the available information continues to support the safety of BPA for the currently approved uses in food containers and packaging,” said the agency. “FDA will also continue to consult with other expert agencies in the federal government, including the National Institutes of Health (and the National Toxicology Program), the Environmental Protection Agency, the Consumer Product Safety Commission, and the Centers for Disease Control and Prevention.” See…
The Natural Resources Defense Council (NRDC) has joined the Center for Science in the Public Interest and other consumer groups in petitioning the U.S. Food and Drug Administration (FDA) to remove several chemicals from food contact materials. The first food additive petition asks FDA to promulgate a new rule “prohibiting the use of perchlorate as a conductivity enhancer in the manufacture of antistatic agents to be used in food contact articles,” and to amend existing regulations to ban the use of potassium perchlorate in food container sealing gaskets. Citing “the well-recognized toxicity of perchlorate,” the petition alleges that dietary exposure can impair fetal and infant development, especially when pregnant or nursing women do not consume enough iodine. A second petition urges the agency to revoke approval for “the use of long-chain perfluorocarboxylate [PFC] oil and grease repellents in paper and paperboard.” Noting that FDA has already asked some domestic manufacturers to…
A Michigan federal court has denied The International Group Inc.’s (IGI’s) motion for summary judgment in a case alleging that the waxmaker and FPC Flexible Packaging Corp. provided Kellogg with non-merchantable cereal bags. Kellogg Co. v. FPC Flexible Packaging Corp., No. 11-272 (W.D. Mich., order entered September 30, 2014). IGI supplied wax to FPC, which used it to construct cereal bags sold to Kellogg. The bags were then used as liners in boxes of Corn Pops, Froot Loops, Apple Jacks, and Honey Smacks, and after consumers complained of nausea and diarrhea, Kellogg destroyed its inventory of the cereals and issued vouchers to consumers who had already purchased boxes. After ruling that Canadian law applied, the court assessed the contract between FPC and IGI, determining when it began, what terms were implicit and what warranties existed as a result. “Questions of fact exist as to whether the wax was merchantable,” the…
