An unopposed motion for preliminary approval of a class-action settlement has been filed in a federal court in New York to resolve the claims of those who allegedly purchased Salmonella-contaminated pet food that was subject to a nationwide recall and purportedly linked to infections in people and animals. Marciano v. Schell & Kampeter, Inc., No. 12-2708 (E.D.N.Y., motion filed January 28, 2014. If approved, the settlement would provide $2 million cash to three subclasses of claimants: those who purchased but never used the recalled products, those who purchased and used the products and “sustained economic damages as a result of injury or death to animals from their consumption of recalled products,“ and those who purchased the products subject to recall and fully used them “with no resultant ill effects.” Under the agreement, the defendants would also continue to use improved quality control procedures for three years. Issue 511
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Finding significant differences among the state laws applicable to a putative nationwide class action alleging injury to pets and economic damages from the purchase of dog treats containing chicken jerky from China, a federal court in California has denied the plaintiff’s request for class certification. Holt v. Globalinx Pet LLC, No. 13-0041 (C.D. Cal., S. Div., order entered January 30, 2014). According to the court, “[w]hile the Plaintiff maintains that the laws of California should apply to the proposed nationwide classes, the Defendants have catalogued a series of material differences between the consumer protection laws of several states and those of California, and crucially, this Court has already performed a case-specific conflict of law analysis and determined that Texas law would govern four of the named Plaintiff’s causes of action.” Agreeing that these differences were material, the court concluded that the proposed classes “do not meet the predominance and superiority…
The U.S. Food and Drug Administration (FDA) has issued a proposed rule that would establish current good manufacturing practice (CGMP), hazard analysis and risk-based preventative controls for animal food. According to an October 29, 2013, Federal Register notice, FDA is taking this action to provide greater assurance that animal food is safe and will not cause illness or injury to animals or humans and is intended to build an animal food safety system for the future that makes modern, science and risk-based preventive controls the norm across all sectors of the animal food system.” Billed as “part of the Food Safety Modernization Act’s larger effort to modernize the food safety system for the 21st century,” the proposed rule would require domestic and foreign animal-food manufacturing facilities registered under the Federal Food, Drug, and Cosmetic Act to develop a formal plan to prevent foodborne illness as well as respond to “any…
The Food and Drug Administration (FDA) has published new guidance on Salmonella-contaminated food for animals. Titled “Compliance Policy Guide Sec. 690.800 Salmonella in Food for Animals” (CPG), the guidance finalizes the draft CPG that was announced in August 2010 and includes the following changes: (i) the title has changed from “Salmonella in Animal Feed” to “Salmonella in Food for Animals” to clarify that it covers all animal food, including pet food and animal feed, and (ii) the term “direct human contact animal feed” has been replaced with the term “pet food” and includes treats and chews. FDA has also announced (i) the removal of 21 CFR 500.35 “Animal feeds contaminated with Salmonella microorganisms,” and (ii) the withdrawal of “Compliance Policy Guide Sec. 690.700 Salmonella Contamination of Dry Dog Food.” See Federal Register, July 16, 2013.
The U.S. Supreme Court has denied the request to review a Washington appeals court dismissal of claims filed by a man who alleged that contaminated pet food caused his cat’s death. Earl v. Menu Foods Income Fund, Inc., No. 12-1083 (U.S., cert. denied May 13, 2013). According to a news source, the defendant had recalled some of its pet foods due to melamine contamination, but the plaintiff apparently failed to produce admissible evidence that those foods were implicated in his pet’s death. In its opposition to the plaintiff’s petition to the Court, Menu Foods reportedly stated that no federal question was presented. Rather, at issue was whether state law on the preservation and destruction of evidence had been properly applied. See Bloomberg BNA Product Safety & Liability Reporter, May 13, 2013.
The U.S. Food and Drug Administration (FDA) has issued a final rule that amends the regulations for “irradiation of animal feed and pet food to provide for the safe use of electron beam and x-ray sources for irradiation of poultry feed and poultry feed ingredients.” The revised rule states that ionizing radiation is limited to (i) “gamma rays from sealed units of cobalt-60 or cesium-137”; (ii) “electrons generated from machine sources at energy levels not to exceed 10 million electron volts”; (iii) “x-rays generated from machine sources at energies not to exceed 5 million electron volts”; and (iv) “x-rays generated from machine sources using tantalum or gold as the target material and using energies not to exceed 7.5 (MeV).” See Federal Register, May 10, 2013.
The Food and Drug Administration (FDA) has announced a draft compliance policy guide (CPG) concerning the “Labeling and Marketing of Nutritional Products Intended for Use to Diagnose, Cure, Mitigate, Treat, or Prevent Disease in Dogs and Cats.” According to the September 10, 2012, Federal Register notice, the draft CPG explains how FDA plans “to use its enforcement discretion with regard to the labeling and marketing of dog and cat food products that are labeled and/or marketed as intending to diagnose, cure, mitigate, treat, or prevent diseases and to provide nutrients in support of meeting the animal’s total daily nutrient requirements.” Issued in response to new animal drug provisions of the Federal Food, Drug, and Cosmetic Act (FD&C Act), the draft CPG seeks to address an observed increase in the number of cat and dog food products “that make labeling or marketing claims” about disease diagnosis, treatment or prevention. It also…
A New York resident has filed a putative class action against Diamond Pet Foods and Amazon.com, seeking medical monitoring for pets that consumed recalled Salmonella-tainted pet food. Cohen v. Schell & Kampeter, Inc., d/b/a Diamond Pet Foods, No. 12-3299 (E.D.N.Y., filed July 2, 2012). Plaintiff Steven Cohen alleges that he fed his dogs Taste of the Wild® brand pet food, purchased from Amazon.com, and that they became ill, vomiting frequently, “which caused damage to Plaintiff’s property.” Seeking to certify a nationwide class and statewide subclass of consumers, the plaintiff alleges breach of implied and express warranty, strict products liability, violations of state consumer fraud laws, negligence, and unjust enrichment. In addition to medical monitoring, the plaintiff seeks actual damages or restitution, attorney’s fees, costs, and interest. A Canadian non-profit representing the interests of foie gras producers, a New York-based foie gras producer and a company that operates restaurants in California have…
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,…
According to the Centers for Disease Control and Prevention (CDC), 14 people in nine states have purportedly been stricken with a Salmonella strain identical to that found in “multiple brands of dry pet food produced by Diamond Pet Foods at a single manufacturing facility in South Carolina.” CDC’s May 3, 2012, announcement indicates that the strain, Salmonella infantis, is rare and could have infected humans after contact with dry pet food or with an animal that has eaten it. Five of those afflicted have apparently been hospitalized. The Salmonella was first detected by the Michigan Department of Agriculture and Rural Development during a routine retail testing of dry pet food, and the company has voluntarily recalled three of its dry dog food products since then.
