A federal court in California has reportedly dismissed claims that ConAgra Foods, Inc. provided inadequate cooking instructions on its chicken pot pie products. Meaunrit v. ConAgra Foods, Inc., No. 09-02220 (N.D. Cal., decided July 20, 2010). More than 250 people purportedly got sick after eating the company’s pot pies in 2007 in a Salmonella outbreak that led to a nationwide recall. The named plaintiff in this putative class action apparently did not get sick, but claimed that the company put human health at risk by providing inadequate cooking instructions too difficult for the average consumer to understand. She also alleged that the company’s production facilities subjected consumers to food borne illnesses by failing to adequately prevent bacterial contamination of its products. According to the court, federal agencies pre-approved ConAgra’s product labeling and, “[b]ecause the pre-approval process includes a determination of whether the labeling is false and misleading, and the gravamen of…
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U.S. Representative Henry Waxman (D-Calif.) has requested that the Kellogg Co. provide documentation to the Committee on Energy and Commerce concerning the possible contamination of millions of cereal boxes with the chemical 2-methylnaphthalene. In his August 2, 2010, letter, Waxman refers to the June recall of more than 25 million boxes of “Corn Pops, Honey Smacks, Fruit Loops, and Apple Jacks cereal” and notes that while at least one study has shown the chemical at issue “may cause lung injuries in adults[, t]here are no studies indicating whether children are more susceptible.” Waxman cites a news article indicating that Kellogg destroyed tainted packaging before issuing the recall, and he seeks documents relating to (i) the company’s food safety policies and procedures; (ii) “any assessments of the health risks posed by 2-methylnaphthalene conducted by, commissioned by, or requested by your company, including a copy of the health risk assessment created by…
This article examines the fallout from Kellogg Co.’s recall of 28 million cereal boxes that, according to a public statement, contained “elevated levels of hydrocarbons, including methyl naphthalene, normally found in the paraffin wax and film in the liners.” The company voluntarily pulled the products after receiving complaints about an “off-flavor and smell,” which caused nausea and other gastrointestinal ailments in some consumers. Schor highlights the failure of Congress to pass reform measures that would allow the Food and Drug Administration (FDA) to issue mandatory recalls. “[T]he legislation sits in limbo in the upper chambers as industry groups chafe at Sen. Dianne Feinstein’s (D-Calif.) bid to ban another chemical with an unclear safety history, bisphenol A, from food containers,” she writes. Citing a recent Environmental Working Group (EWG) report that underscores the potential toxicity of methyl naphthalene, Schor raises questions about the overall safety of food packaging. EWG has “urged…
Following Kellogg Co.’s voluntary recall of some 28 million boxes of breakfast cereals for a “waxy” smell and flavor emitted from package liners, some have pointed to growing public concern over chemicals, such as bisphenol A, that are allegedly leaching into foods from packaging materials. The Kellogg recall involved an unknown substance added to the liners at the company’s Omaha, Nebraska, facility; it reportedly gave rise to complaints about nausea and vomiting, and the company warned parents that it could cause vomiting or diarrhea in sensitive children. Writing about the recall, The Daily Green discusses a 2009 study of legal food packaging substances that purportedly have endocrine disrupting properties. Among the food packaging chemicals with potential health effects are lead in glass, ortho-phenylphenol in beer and soda cans, perfluorinated compounds in paper packaging, and benzophenone in milk, juice and wine cartons. See The Associated Press, June 25, 2010; The Daily Green,…
A California resident has filed a putative class action in federal court against Kellogg Co., alleging that the company misled consumers by claiming its snack products were healthy and nutritious and met “stringent food safety requirements,” when in fact they contained Salmonella-contaminated peanut paste supplied by the Peanut Corporation of America. Benavides v. Kellogg Co., No. 10-02294 (C.D. Cal., filed March 29, 2010). The Peanut Corp. Salmonella outbreak led to a massive recall of food products, including Kellogg’s Austin® and Keebler® branded sandwich crackers and cookies. The complaint alleges that Kellogg hired unqualified private inspectors to audit its suppliers’ manufacturing plants while claiming that its suppliers met Codex Alimentarius Commission standards. The plaintiff seeks to certify a nationwide class of consumers with alleged monetary injury. He alleges (i) unlawful business acts and practices in violation of California’s Sherman Food, Drug and Cosmetics Law and Consumer Legal Remedies Act; (ii) deceptive marketing and…
The Ninth Circuit Court of Appeals has lifted a preliminary injunction that prevented California from enforcing a law adopted after The Humane Society’s video of the mistreatment of downer cattle at a slaughterhouse became public and led to a massive beef recall in 2008. Nat’l Meat Ass’n v. Brown, 09-15483 (9th Cir., decided March 31, 2010). The National Meat Association challenged California’s law, which prohibits slaughterhouses from receiving, processing or selling nonambulatory animals, as preempted by the Federal Meat Inspection Act (FMIA), and the district court agreed. The state law also prohibits moving a nonambulatory animal without a sling or other sled-like or wheeled conveyance. According to the Ninth Circuit, the federal law, which contains an express preemption provision, prescribes what is to be done with nonambulatory animals to be slaughtered and sold for human consumption; it does not limit states “in their ability to regulate what types of meat may…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has issued temporary labeling guidance for products that contain hydrolyzed vegetable protein (HVP) recently recalled for Salmonella contamination. As companies reformulate their products due to the recall, existing labels are likely to be out of compliance and may require temporary approval for continued use. To obtain temporary approval, companies are asked to follow the instructions highlighted on the FSIS website and submit a request to the FSIS Labeling and Program Delivery Division, which will expedite the requests marked clearly with a justification such as “HVP temporary label submission.” FSIS will grant temporary approval for any product if the HVP is removed and any replacement ingredients do not represent an allergen concern. “In situations where negative claims or nutrient content claims appear on labeling, it is critical to stipulate that all claims will continue to be met, or provide information…
U.S. Senator Kirsten Gillibrand (D-N.Y.) has introduced legislation (S.B. 3114) that would require food distributors, retailers and health agencies to notify consumers and local officials in the event of a Class I food recall. Under the Consumer Recall Notification Act, the Food and Drug Administration (FDA) could ask grocery stores and other retailers to provide “on-site notification” where recalled foods are sold. In addition, purveyors that track data through customer card systems would need to alert, by phone and mail, the purchasers of recalled items or risk civil penalties of $100 per customer. Suppliers would also need to notify “applicable retail establishments and restaurants” within 24 hours of a Class I recall to avoid a $1,000 penalty per day, per notification of each level of distribution. “In America, in 2010, it is unconscionable that we don’t have an effective way to communicate food-borne illness outbreaks to consumers and health departments,”…
Plaintiffs who brought personal and economic injury claims against Topps Meat Co. for an E. coli outbreak that led to the recall of more than 20 million pounds of ground beef in 2007 have filed a motion for class certification. Patton v. Topps Meat Co., No. 07-654 (W.D.N.Y., motion filed October 15, 2009). While the proposed classes, a “consumer class” of persons who purchased ground beef subject to the recall and allege economic losses and an “injury class” of persons who consumed the ground beef and allege personal injury, are national in scope, the plaintiffs contend that New York law will apply to the case. According to the named plaintiffs, each of whom was allegedly sickened by consuming contaminated meat, federal investigators confirmed 40 E. coli cases linked to the outbreak strain and estimate that for every reported case, 20 cases go unreported. Thus, they suggest that the number of injury…
The Food and Drug Administration (FDA) has announced that U.S. marshals executed an inspection warrant at Westco Fruit and Nuts, Inc., in Irvington, New Jersey, after the company refused to recall its peanut products or provide access to distribution documents in the wake of the Salmonella outbreak involving peanuts from the Peanut Corp. of America (PCA). An FDA spokesperson said, “FDA’s enforcement action against Westco Fruit and Nuts is an appropriate step toward removing potentially harmful products from the marketplace, especially when, as in this case, a company is unwilling to share information FDA needs to ensure food safety. FDA uses all appropriate legal means necessary to obtain information and fully investigate firms or individuals who put the health of consumers at risk.” Apparently, Westco purchased oil-roasted and salted peanuts from PCA in November and December 2008. It sold them in various sizes and packages and used them as an…
