A federal court in the District of Columbia has dismissed a lawsuit filed by California almond growers, handlers and grower-handlers against the U.S. Department of Agriculture (USDA) challenging an agency regulation that requires handlers to treat raw almonds grown and sold in the United States to reduce the risk of Salmonella contamination. Koretoff v. Vilsack, No. 08-1558 (D.D.C., decided March 9, 2009). Without addressing the merits of the complaint, the court granted the USDA’s motion to dismiss, finding that the plaintiffs failed to exhaust their administrative remedies, which would have required petitioning the USDA secretary before bringing their action in court, as mandated by statute. Since September 2007, all domestic almonds intended for sale in the United States must be pasteurized by either proplylene-oxide fumigation or steam heat. Growers and handlers reportedly complain that unpasteurized raw almonds demand higher prices, up to 40 percent more, and that foreign suppliers, who are…
Tag Archives salmonella
The Federal Circuit Court of Appeals has determined that a U.S. Department of Agriculture (USDA) Salmonella rule, which interfered with an egg producer’s sales for about two years, was not a compensable taking under the Fifth Amendment. Rose Acre Farms, Inc. v. U.S., No. 07-5169 (Fed. Cir., decided March 12, 2009). The case involved emergency regulations adopted in 1990 that restricted the sale of eggs from farms identified as infected with a type of Salmonella bacteria. The regulations diverted the eggs from three of Rose Acre’s farms from the table to other uses, such as in cake mixes, for 25 months and thus purportedly reduced the company’s profits. The company brought several lawsuits against the government, and the various issues raised were appealed several times. This appeal involved the “takings” issue only and was before the Federal Circuit for the second time. Under the Fifth Amendment, the government must compensate private…
The Food and Drug Administration (FDA) last week issued guidance to the food industry about the risk of Salmonella contamination posed by peanuts and peanut-derived products used as food ingredients. The guidance also recommended measures that food manufacturers can take to address that risk from their ingredient suppliers and for the products they themselves produce. The guidance recommends that manufacturers obtain their peanut-derived ingredients only from suppliers whose production processes have been demonstrated to adequately reduce the presence of Salmonella or ensure that their own manufacturing processes would adequately reduce that presence. Meanwhile, the Associated Press reported that the Peanut Corp. of America filed documents in bankruptcy court listing nearly $11.4 million in assets and debts of $4.8 million. Most of the assets will not be available to compensate consumers. Peanut Corp. filed for Chapter 7 bankruptcy in February 2009 amid growing fallout from a national Salmonella outbreak, which reportedly…
“An examination of the largest food poisoning outbreaks in recent years – in products as varied as spinach, pet food, and a children’s snack, Veggie Booty – show that auditors failed to detect problems at plants whose contaminated products later sickened consumers,” claims this article exploring the role of private inspectors in the current food safety system. The authors point to the recent Salmonella outbreak linked to a Peanut Corp. of America (PCA) plant in southwest Georgia. According to a March 27, 2008, internal audit obtained by The New York Times, the operation received a food safety rating of “superior” from a third-party inspector hired by PCA to verify plant conditions on behalf of the Kellogg Co. and other food companies supplied by the peanut processor. “Federal investigators later discovered that the dilapidated plant was ravaged by Salmonella and had been shipping tainted peanuts and paste for at least nine months,” opines…
Seeking “substantial damages,” a company that makes wild bird food has filed a lawsuit against a supplier that allegedly sold it peanut by-products originating from the Georgia facility linked to the Salmonella contamination outbreak. The Scotts Co., LLC v. Cereal Byproducts Co., No. 09-108 (S.D. Ohio, filed February 17, 2009). According to the complaint, the defendant sold and shipped peanut by-products to the plaintiff in December 2008 and January 2009, after it was known that the outbreak originated in the Blakely, Georgia, facility owned and operated by the Peanut Corp. of America (PCA), and repeatedly “made false representations” that the by-products did not come from a potentially contaminated PCA facility. The plaintiff was allegedly forced to recall its suet wild bird food products and incurred unspecified costs and injury to goodwill. The complaint alleges breach of contract, negligent misrepresentation and violations of Ohio’s deceptive trade practices law.
ConAgra Foods, Inc. has reportedly filed a lawsuit against its umbrella insurer, seeking coverage for the claims that were filed by people who alleged injury from a Salmonella outbreak in 2007 linked to the company’s Sylvester, Georgia, peanut butter processing facility. ConAgra Foods, Inc. v. Lexington Ins. Co., No. 09C-02-170 (Del. Super Ct., New Castle Cty., filed February 19, 2009). The complaint alleges that Lexington Insurance Co. has failed to pay for any of the 2,400 claims settled or resolved to date. ConAgra reportedly anticipates an additional 20,000 cases from the outbreak. According to a news source, the company is seeking a declaratory judgment, compensatory and punitive damages, interest, and attorney’s fees. See Product Liability Law 360, February 24, 2009.
The Peanut Corp. of America, whose Salmonella-tainted peanut butter and peanut paste products led to one of the largest food recalls in the United States, has reportedly filed for Chapter 7 bankruptcy protection in Virginia. The day it did so, Texas health officials apparently announced a recall of all products manufactured at the company’s peanut-processing facility in that state after discovering dead rodents, droppings and bird feathers in unsealed gaps above a food production area. A Virginia plant operated by the company has also been closed. A state agriculture spokesperson reportedly said that inspectors found minor problems at the facility in 2007 and 2008, including flaking paint and evidence of rodents. Food lawyer William Marler, who has sued the company on behalf of several families allegedly affected by the Salmonella outbreak, claimed that he has hired a law firm that helped him “manage both the Chi-Chi and Topps Bankruptcies,” and…
The American Bar Association’s Litigation Section sponsored a “Hot Topics in Food Law” program via the Web and telephone on February 10, 2009. Speakers included in-house counsel for a large food manufacturing company, a Grocery Manufacturers Association (GMA) representative and Stephen Gardner, the director of litigation for the Center for Science in the Public Interest (CSPI). They focused on the most recent “ingredient-driven” foodborne contamination outbreaks, including pet food and infant formula containing melamine and peanut butter products tainted with Salmonella. In light of such incidents, the speakers emphasized that food companies must carefully manage their supply chains through independent, reliable audits and the establishment and communication of clear, achievable food safety standards. After the recent peanut butter recall, companies will likely focus on company-to-company tracing issues. A speaker representing the outside counsel perspective focused on bisphenol A and discussed recent initiatives to ban it in Canada and list it…
A subcommittee of the House Energy and Commerce Committee conducted a hearing February 11, 2009, to hear from victims, regulators and the individuals who own and operate the Georgia peanut processing facility responsible for the latest Salmonella outbreak. Titled, “The Salmonella Outbreak: The Continued Failure to Protect the Food Supply,” the hearing gave congressmen the opportunity to question Stewart Parnell who owns the Peanut Corp. of America (PCA) about the company’s practice of shipping contaminated product to food processors even after it had tested positive for Salmonella. Parnell and the man who managed the plant invoked their Fifth Amendment privilege and refused to answer questions, including whether they would eat the recalled products, which now number in excess of 1,800 items. The outbreak has reportedly sickened more than 600 in the United States and Canada, led to a suspected nine deaths and launched at least four personal injury lawsuits to date.…
Food litigator William Marler has reportedly filed an amended complaint on behalf of a Vermont couple whose son was allegedly sickened and hospitalized following ingestion of a product containing Salmonella-tainted peanut butter. Meunier v. Peanut Corp. of Am., No. 09-12 (M.D. Ga., first amended complaint filed January 28, 2009). The plaintiffs are now seeking punitive damages for “willful concealment of known defects.” The amendment follows the release of a Food and Drug Administration (FDA) inspection report showing that the Peanut Corp. of America (PCA) shipped products that tested positive for Salmonella after the company had the products retested and received negative test results. Marler was quoted as saying, “In 15 years of litigating food cases, this is one of the worst examples of corporate irresponsibility I have ever seen. Not only does the plant appear to have atrocious practices, but the product that seems to have repeatedly tested positive for Salmonella was shipped…
