A federal court in Washington will allow plaintiffs to amend a false advertising complaint alleging that their dogs became sick after eating pet food contaminated with pentobarbital, a drug used to euthanize animals. Mael v. Evanger’s Dog & Cat Food Co. Inc., No. 17-5469 (W.D. Wash., entered February 20, 2018). The complaint alleged that the plaintiffs’ dogs became ill after eating Evanger’s beef products and that a U.S. Food and Drug Administration (FDA) investigation found traces of pentobarbital in several of the company’s products. The plaintiffs allege that Evanger's falsely advertised the products as “human grade, USDA inspected meats,” although FDA reportedly found that none of the company’s products were USDA-inspected or human grade. After the FDA investigation, Evanger's recalled all of the products. Evanger's moved to dismiss the complaint, arguing that plaintiffs referred to both recalled and non-recalled products. The court found that the plaintiff had failed to allege…
Tag Archives recalls
One day after the U.S. Food and Drug Administration (FDA) issued draft guidance on proposals to expedite product warnings and recalls, FDA and other health officials testified before the House Subcommittee on Oversight and Investigations about the results of an audit faulting the agency for the failure of the recall process to ensure food safety. Conducted by the Office of Inspector General of the Department of Health and Human Services, the audit identified a two-month average delay between when FDA notified companies of issues and when companies took action. During the hearing, Rep. Greg Walden (R-Ore.) reportedly displayed a snack container he had brought to a 2009 hearing on a nationwide Salmonella outbreak traced to products manufactured by the Peanut Corp. of America (PCA). PCA executives are serving federal prison terms for their roles in the outbreak, and a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit…
The U.S. Food and Drug Administration (FDA) has issued draft guidance aiming to increase and expedite product warnings and recalls. According to FDA Voice, recall information has historically not been released to the public until after a weeks- or months-long evaluation and classification process. The agency plans to add “not-yet-classified” recalls of drugs, food and veterinary products to its weekly Enforcement Report, but the addition will not affect existing protocols for working with companies. The deadline for submitting public comment is March 20, 2018.
The Food and Drug Administration (FDA) has launched a new “consumer-friendly” web portal detailing the latest recalls, market withdrawals and safety alerts for food and other products regulated by FDA. According to an April 4, 2011, press release, the new searchable database organizes all recall information since 2009 “by date, product brand name, product description, reason for the recall, and the recalling firm.” It also provides a link to news releases about each recall, as well as a photograph of the products in question. Designed with input from stakeholder groups such as the Center for Science in the Public Interest, Food Marketing Institute, Grocery Manufacturers Association, and Pew Health Group, the web portal answers to Food Safety Modernization Act (FSMA) requirements that FDA implement “a consumer-friendly recall search engine within 90 days after the law went into effect.” Under FSMA, the agency must also indicate whether it offered the opportunity…
Kellogg Co. has filed a lawsuit in a Michigan federal court against the Canadian packaging company that supplied allegedly defective liners with “offensive characteristics” (taste and odor) that purportedly caused nausea and diarrhea in some Kellogg cereal consumers and forced a “costly nationwide recall” of four company products. Kellogg Co. v. FPC Flexible Packaging Corp., No. 11-272 (W.D. Mich., S. Div., filed March 18, 2011). The cereal maker alleges violations of Michigan’s Uniform Commercial Code, breach of contract and express and implied indemnification. Alleging damages in excess of $75,000, Kellogg also seeks a declaratory judgment that it is not liable for payment of $3.3 million in materials still in the packaging company’s possession or for the $1.04 million in defective liners provided to Kellogg. According to the complaint, the packaging company has demanded payment for the liners and the materials used in their production.
The Food and Drug Administration (FDA) has issued a warning letter to CEO John Glessner of Ohio Fresh Eggs, after finding that it had shipped nearly 800 cases of eggs from farms that had tested positive for Salmonella. The Ohio company is reportedly linked to the egg producer involved in a massive egg recall in 2010; Glessner apparently has ties to Hillandale Farms of Iowa whose owner Jack DeCoster apparently provided most of the funds to purchase Ohio Fresh Eggs from a previous owner. The company has reportedly characterized the shipment as a mistake and was quoted as saying, “Our farm cooperated fully with FDA to ensure a swift and complete recall of those eggs from our customer, and we are thankful no illnesses were reported.” See Des Moines Register, March 1, 2011.
Adams Extract & Spice has sued Van de Vries Spice Corp. in a New Jersey federal court alleging damages in excess of $75,000 due to a 2009 spice recall involving ground red pepper allegedly contaminated with Salmonella. Adams Extract & Spice, LLC v. Van de Vries Spice Corp., No. 11-00720 (D.N.J., filed February 8, 2011). Apparently, Van de Vries sold 11,000 pounds of the spice to Adams Extract which then incorporated it into various products sold under its brand name. After learning about the contamination risk, Adams Extract issued a product recall that allegedly “resulted in significant damages to Adams Extract.” Alleging negligence by failure to comply with Food and Drug Administration standards, breach of contract, breach of warranty, and strict product liability, Adams Extract seeks compensatory damages, interest, costs, and delay damages.
The Judicial Panel on Multidistrict Litigation has denied a plaintiff’s motion to centralize several lawsuits involving recalled infant formula, purportedly contaminated with insects, before a multidistrict litigation (MDL) court for pretrial proceedings. In re: Abbott Labs., Inc., Similac Prods. Liab. Litig., MDL No. 2211 (J.P.M.L., decided February 4, 2011). The panel noted that while it had centralized food-product contamination lawsuits in the past, it would not be appropriate to do so here because individual issues predominated over common ones. According to the panel, “discovery and motion practice may be expected to concern (1) the particular product each plaintiff purchased, (2) any injuries that consumption of the product caused, (3) whether the product contained beetles or beetle larvae, and/or (4) what advertising or other representations were made to each particular plaintiff (and, relatedly, whether the plaintiff relied upon those representations).” Still, the panel encouraged the parties to pursue a voluntary coordination strategy,…
Montana and California residents have sued Safeway, Inc. in a California state court on behalf of a putative nationwide class of customers that the company allegedly failed to notify about tainted food recalls despite the ability to contact purchasers of contaminated products through its “club card” loyal customer program. Hensley-Maclean v. Safeway, Inc., No. __ (Cal. Super. Ct., Alameda Cty., filed February 2, 2011). Backed by the Center for Science in the Public Interest (CSPI), the plaintiffs allege that they purchased Salmonella-tainted peanut butter and egg products from the grocery and learned only by chance on the news or from neighbors that the products were subject to a recall. According to the complaint, the company’s club card program gives the grocery contact information for participating customers and a history of the purchases they have made. The plaintiffs allege, “Many of Safeway’s competitors already use their own customer data to notify their…
Setton International Foods, which recalled more than 15 million pounds of pistachios in 2009 when Salmonella was detected in a delivery to one of its customers, has reportedly entered a settlement agreement with its insurers in a dispute over coverage for third-party claims. While the terms of the settlement have not been disclosed, a federal court in California has apparently dismissed the claims Setton filed against five insurance companies. According to a news source, Setton claimed that its insurers failed to provide assistance in defending or negotiating the third-party claims, and this purportedly led to the company’s exposure to increased liability. See Product Liability Law 360, January 7, 2011.
12
