A federal court in California has denied the ex parte request of foie gras producers to temporarily halt California’s enforcement of a ban on the sale of any product that is the result of force-feeding a bird for the purpose of enlarging its liver beyond normal size. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12-5735 (C.D. Cal., order entered July 18, 2012). Additional information about the challenge to California’s foie gras ban appears in Issue 446 of this Update. The court also established a briefing schedule on the plaintiffs’ motion for preliminary injunction that will culminate in an August 29, 2012, hearing. Meanwhile, California restaurateurs have reportedly found ways around the state’s ban. A restaurant on a former military base in San Francisco, now owned by the National Park Service, apparently began offering the dish on its menu, claiming that its location on federal land makes it…
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The Wisconsin Supreme Court has decided which of the parties sued over an E. coli outbreak that sickened dozens of Sizzler Steak House patrons in 2000 and caused the death of a 3-year-old are liable for consequential damages, indemnity and costs under various supply chain and insurance contracts. Kriefall v. Sizzler USA Franchise, Inc., Nos. 2009AP1212 & 2010AP491 (Wis., decided June 29, 2012). Among other matters, the court ruled that Sizzler was entitled to (i) recover consequential damages for the meat supplier’s breach of implied warranties despite limiting language in the continuing guaranty provision of their contract, and (ii) indemnity from the meat supplier for Sizzler’s advance partial payment to the family of the deceased child “because the payment was not voluntary and the jury found that Sizzler was zero percent liable for the E. coli contamination.” The court also ruled that Sizzler could not recover its attorney’s fees despite a jury finding…
A group of national pizza chains has reportedly formed a new coalition to combat proposed menu labeling regulations that would require companies with 20 or more food outlets to post calorie information on menus and menu boards. Mandated by the Patient Protection and Affordable Care Act of 2010, the Food and Drug Administration’s April 2011 draft rules call on restaurants to display calories ranges for all customizable menu options as well as the overall calorie count for each item. The American Pizza Community (TAPC), however, has opposed the measure as unfair to those enterprises with highly variable offerings that are unlikely to be consumed by one person. “A light bulb goes on when people hear about all the combinations for pizza,” said TAPC Chair Lynn Liddle. “They start to realize how difficult it would be to make a one-size-fits-all approach.” TAPC members have also argued that not only are 90…
The New York City Board of Health and Mental Hygiene (DOHMH) has called a July 24, 2012, public hearing to gather feedback on Mayor Michael Bloomberg’s recommendation to limit the size of sugar-sweetened beverages sold at local food service establishments. The 11 member board reportedly voted unanimously at a June 12, 2012, meeting to publish the proposal, which would amend Article 81 of the Health Code to establish a maximum serving size of 16 ounces for sugary non-alcoholic drinks and all self-service cups. If adopted by DOHMH on September 13, the amendment would apply to restaurants, food carts, delis, movie theaters, stadiums, and arenas while also imposing a $200 fine for each violation of the code. According to the notice of public hearing, the proposal seeks to address rising obesity rates among city residents by “reacquainting New Yorkers with more appropriate portion sizes.” The plan has apparently drawn support from…
The Sixth Circuit Court of Appeals has determined that the Roskam Baking Co. did not infringe a trademark by using the term “Texas Toast” in selling its packaged croutons. T. Marzetti Co. v. Roskam Baking Co., No. 10-3784 (6th Cir., decided May 25, 2012). Marzetti apparently began using the Texas Toast mark for its frozen garlic bread in 1995 and then adopted the term for use with a crouton product sold in 2007. The company attempted to register the mark in 2009, but the applications were initially denied “because of the potential likelihood of confusion with the mark Texas toast for bakery goods.” Thereafter, they were approved for publication as, “at a minimum, suggestive.” The defendant filed an opposition to the trademarks in 2010, and Marzetti, learning about the company’s Texas Toast croutons, filed this trademark infringement action. The Sixth Circuit agreed with the district court that the mark is not…
The Campaign for a Commercial-Free Childhood (CCFC), Public Citizen and Corporate Accountability International are reportedly urging the PBS network to “end a four-year marketing agreement between the popular children’s show ‘Martha Speaks’ and the fast food chain Chick-fil-A.” The marketing agreement includes 15-second ads for the restaurant before and after the show and in-store giveaways at more than 1,600 Chick-fil-A locations. According to the watchdog groups, “an astounding 56 million Chick-fil-A Kids’ Meals—which contain as much as 670 calories and 29 grams of fat—were distributed in Martha Speaks co-branded bags” in 2011. The groups also called for PBS member station WGBH, which produces “Martha Speaks,” to withdraw the ads from nomination for a children’s marketing award. “PBS deserves lots of awards, but using a beloved character to lure kids to a fast food restaurant is nothing to celebrate,” said CCFC’s Susan Linn. See CCFC Press Release, May 23, 2012.
Chipotle Mexican Grill has filed a report with the Securities and Exchange Commission (SEC) advising that the U.S. Attorney for the District of Columbia “is conducting an investigation into possible criminal securities law violations relating to our employee work authorization verification compliance and related disclosures and statements.” The probe follows investigations into the company’s compliance with immigration laws by the U.S. Department of Homeland Security’s Immigration and Customs Enforcement arm and public disclosure requirements by SEC. According to news sources, the company, which has indicated its intent to fully cooperate with the investigations, was forced to fire some 450 employees in 2011, after it learned that illegal immigrants had been hired to work in its Minnesota restaurants. Since then, the company has reportedly been using Homeland Security’s E-Verify system to confirm employee eligibility. See Reuters and Law360, May 18, 2012; Bloomberg, May 21, 2012,
A federal court in Pennsylvania has denied the motion for summary judgment filed by a Burger King franchisee sued for violating the civil rights of an African-American truck driver who alleged that restaurant employees spit in his sandwich before serving it. Goodwin v. Fast Food Enters. #3, LLP, No. 10-23 (W.D. Pa., decided May 16, 2012). This motion was based on the assertion that the plaintiff would be unable to establish that the defendant is liable for the “allegedly discriminatory actions of the employees” and a request to strike the plaintiff’s request for punitive damages. In a previous motion, also decided against the franchisee, the court determined that “there were triable issues of material fact concerning whether Goodwin’s sandwich had been spat into and whether the incident, if it occurred, was racially motivated.” According to the court, the doctrine of respondeat superior, may not, as argued by the defendant, apply in…
JibJab Media Inc., a digital media company known for its photo cut-out animated videos sometimes used as political satire, has filed a trademark infringement suit against White Castle, alleging that the fast-food chain has infringed its trademarks by launching a social media ad campaign called “Jib Jab Chicken Ring” to promote its “chicken rings” menu item. JibJab Media Inc. v. White Castle Mgmt. Co., No. 12 4178 (C.D. Cal., filed May 14, 2012). According to the complaint, JibJab allows paid subscribers “to personalize videos and images by uploading digital photos and inserting images of faces into JIBJAB® content.” White Castle allegedly named its promotion with the JIBJAB mark, and its online application “copies the look and feel of JibJab’s cut-out animation style and further mimics JibJab’s personalized content by offering users the ability to upload digital photos and insert faces into these video templates.” White Castle also allegedly “explicitly announced that…
A federal court in Washington has dismissed franchisor Domino’s Pizza from litigation alleging that a franchisee’s use of automatic calls with a prerecorded message to numbers stored from previous orders violated state and federal laws prohibiting “robo-calls.” Anderson v. Domino’s Pizza, Inc., No. 11-902 (W.D. Wash., decided May 15, 2012). While the claims against the franchisee and the telemarketing company that placed the calls remains intact, the court refused to certify a class because the plaintiff’s motion was untimely, the statutory damages alone would be significant, and the “burden of any award [which would be grossly disproportionate given the actual damages] would fall on a small business.” According to the court, Domino’s requires franchisees to use a phone system that can store customer numbers and introduced its franchisees to the telemarketer during a national convention in 2009. Domino’s also requires its franchisees to participate in advertising and promotions campaigns. Still, the…
