Health economist Jane Sarasohn-Kahn has an interesting take in a new article on her Health Populi blog about "km zero", a food movement she describes as "the future of food." Basically, it takes locavore standards to the max, seeking to source food as close to you as possible, for the freshest and the best ingredients, including home grown food and CSAs.
I'm super prejudiced here, as Jane has been my friend for well over 40 years (we performed James Thurber's "The Macbeth Murder Mystery" together in high school), but sourcing fresh food and local food and good food are all on the same scale to better nutrition as well as better taste. Of course, it works better in somewhere like Florence, which she writes about, or California, than it might in areas where most agriculture is large-scale monoculture, but it's possible to put in an herb garden or a kitchen garden almost anywhere.
My favorite local agriculture is actually done at an Italian restaurant near us, Perche No, where the herbs and the tomatoes are grown on the roof. Since it's walking distance from home, there's not much of a carbon footprint in going there. The food is beyond spectacular, too. As, apparently, is the food at Tastevere Kmzero, a Rome restaurant that prides itself on using local ingredients and is a takeoff on its neighborhood, Trastavere. Of course, it might take a bit more carbon to get there.
Some helpful information about the new Farm Bill.
Then, two tools mentioned in their blog post, both from the Department of Agriculture. First, a summary that is headed with a picture of a Swiss Army knife, accompanied by President Obama's quote that that was what the bill was like. Second, a webpage from the Economic Research Service, also summarizing the bill and, as their name implies, doing some work on its economic implications. The first one provides the administration's own take on the bill, what it means and how they interpret it. The second one includes some more objective infomation, particularly comparing it to the last bill.
In a recent decision, Judge Dean Pregerson of the U.S. District Court for the Central District of California decertified the class in an action against POM Wonderful over health claims about its pomegranate juice. You know the juice, it’s the one in the cooler section of the grocery store in the glass jar that looks like a purple snowman. Judge Pregerson had previously certified the class, but after discovery, particularly after plaintiffs’ expert’s testimony on damages, POM Wonderful had moved to decertify and, as the headline tells you, the court agreed.
The decision to decertify was rooted in a recent U.S. Supreme Court case, Comcast Corp. v. Behrend, which dealt with the relationship between class certification and claimed damages. The court followed the Ninth Circuit’s interpretation of Comcast, which held that, in determining whether class certification was appropriate, “Plaintiffs must be able to show that their damages stemmed from the defendant’s actions that created the legal liability.” When applied to something that costs only a few bucks, this proposition is not easy to demonstrate.
Plaintiffs here offered two different theories, neither of which came close to persuading Judge Pregerson. First, the “Full Refund Model”: as plaintiffs’ expert testified: “[I]f the health benefits were what caused the purchase, at least predominantly, then a [full] refund would be appropriate”. As the Church Lady might say, isn’t that special? And under the Full Refund Model, damages would be $450 million, an amount that would support some really nice legal fees for class counsel. POM argued, and that court agreed, that that model took no account of the benefits class plaintiffs would have received, such as hydration, calories and vitamins, even if the allegations about the untrue health benefits were proven. Heck, someone might simply want the bottle to use to make a snowman for a school project. There is no damages model that gets a plaintiff class those benefits for free.
More after the jump . . .Continue Reading...
You'll remember the scene from "Casablanca." Ilse (Ingrid Bergman) comes in and Rick (Humphrey Bogart) says, "Your unexpected visit isn't connected by any chance with the letters of transit. It seems as long as I have those letters, I'll never be lonely." That's sort of how I feel about "all natural" product labeling litigation. So long as those cases exist, perhaps I'll never be lonely. But will they always exist? The latest decision in our old friend, Astiana v. Ben & Jerry's Homemade, Inc., provides me with some optimism I might be lonely again.
As you'll recall from our post when this case was first filed, the plaintiff was upset because, she claimed, dutched cocoa was somehow an artificial product. We pooh-poohed that notion, but, presumably for reasons of judicial economy, Ben & Jerry's chose to settle the case.
In the meantime, though, the Ninth Circuit Court of Appeals decided Dennis v. Kellogg Co., which greatly restricted the terms under which settlements of similar cases could be approved. In particular, the case limited the use of the cy pres doctrine, which would dispose of unexpended settlement funds, to charities that benefit the same goals as the unrepresented and unfound members of the plaintiff class. The court said,
Thus, appropriate cy pres recipients are not charities that feed the needy, but organizations dedicated to protecting consumers from, or redressing injuries caused by, false advertising. On the face of the settlement's language, "charities that provide food for the indigent" may not serve a single person within the plaintiff class of purchasers of [the allegedly offending product].
Dennis was decided by the Ninth Circuit literally between the time the court in Astiana had preliminarily approved the class settlement and the date of the hearing on final approval. The court, cognizant of the decision, asked the parties to go back and revise their settlement to one that could be approved in light of Dennis. This they were unable to do, and the settlement collapsed. The plaintiffs then moved to certify the class. And got pounded by the court. After the jump, you'll see how.Continue Reading...
Our colleagues at the California Environmental Law Blog note the General Industrial Storm Water Permit is slated for adoption on April 1, 2014. Everyone in the California food industry from owners of feedlots to operators of manufacturing facilities will find this very important and should follow developments as Ryan Waterman and Missy Foster report on them.
I don't think we need a lot of scientific research to determine why people drink soy milk, almond milk and coconut milk. I'll save some time and list them, not in any particular order:
- They are lactose-intolerant
- They are living a vegan lifestyle
- They prefer the taste to cow's milk
- They prefer the nutritional profile to cow's milk
All four of these reasons have one thing in common: they depend on the consumer understanding that soy milk, almond milk and coconut milk are not cow's milk. So why on God's green earth did someone sue claiming that by labeling the products as soy milk, almond milk and coconut milk, they were confused into thinking the products contained cow's milk?
I will not cast aspersions, because I don't need to. U.S. District Judge Samuel Conti of the Northern District of California took care of this for me.
The case was Ang v. Whitewaves Food Co., and it involved two issues, one of which we won't get into at all: the question of whether evaporated cane juice is "sugar". The other was the claim that by labelling products as soy milk, almond milk and coconut milk, the producers of these products violated the "standard of identity" for milk. The problem is that the regulation they claim "defines" milk is not its standad of identity at all.
The regulation the point to, 21 CFR 131.110(a), provides, "Milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows." But since we actually are capable of reasoning and using language in a non-mechanical way, we can readily understand that this is not the definition of "milk." This is a definition of milk, what you might call the default definition. When we say "milk" without an adjective, in a food context, we mean cow's milk. Milk in a dairy case that says only "milk" is assumed to be cow's milk, and indeed it had better be, or it is likely mislabeled.
But within the same set of regulations that include this definition are a whole bunch of definitions that make it clear that the FDA is not telling anyone that the word "milk" must only apply to cow's milk, despite the plaintiffs' contentions. For example, in the definition of "roquefort cheese", a cheese that cannot be made from cow's milk, the milk must be "of sheep origin", despite a cross-reference to a regulation that refers only to cow's milk.
The court, without looking at my little roquefort definition, reaches the same conclusion:
Moreover, it is simply implausible that a reasonable consumer would mistake a product like soymilk or almond milk with dairy milk from a cow. The first words in the products' names should be obvious enough to even the least discerning of consumers. And adopting Plaintiffs' position might lead to more confusion, not less, especially with respect to other non-dairy alternatives such as goat milk or sheep milk.
On that basis, the court found that the claims under state law were preempted, because federal law generally prohibits states from imposing labeling requirements inconsistent with federal regulations.
The court wasn't done with the plaintiffs, however. Even if not preempted, the court held, citing the famous Crunchberry case we blogged about here, the plaintiffs' claims were simply not plausible.
Plaintiffs essentially allege that a reasonable consumer would view the terms "soymilk" and "almond milk," disregard the first words in the names, and assume that the beverages came from cows. The claim stretches the bounds of credulity. Under Plaintiffs' logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.
As I said at the outset, these products exist as a substitute for cow's milk for various reasons that give consumers a choice of beverage. No one seeks out these products assuming they are getting cow's milk; they seek them out because they are seeking alternatives to cow's milk. Judge Conti, who is a 91-year old senior U.S. District Judge appointed by Richard Nixon, deserves credit for so efficiently seeing through the plaintiffs' claims.
Our distinguished alumnus, founder and former fearless leader, Ken Odza, has sent out an invitation to a FREE ABA Roundtable this coming Thursday, December 12.
The topic is criminal prosecutions of food companies and their officers.
Contemplaying how one might become the subject of a prosecution may not exactly something that will fill you with comfort and joy this holiday season, but the topic is obviously both timely and important.
You can sign up HERE.
Did I mention it is free?
Of particular interest were the mix of goods, the markup. the volume he buys each week and that he dropped the "P" from Pirate Joe's when he was first sued.
My real question is what would happen if I walked into my local Trader Joe's (and I'm a big fan) wearing one of his "I'm Shopping for Pirate Joe's" t-shirts.
Sad news out of Oregon.
Much of the work of detecting the cause of outbreaks is art, not science, and by all accounts he was an artist.
When innovation meets the law, the results are often surprising.
Now consider Pirate Joe's, a business located in the upscale Kitsilano neighborhood of Vancouver, B.C.. I will let them describe their business model in their own words:
Pirate Joe's is an unaffiliated unauthorized re-seller of Trader Joe's products (we are being sued). We stock what we are asked to stock by Trader Joe's lovers who don't always have the time (or a car or a passport) to head south to Bellingham (the nearest Trader Joe's). We buy retail from Trader Joe's then import everything legally and add Canadian compliant ingredient and nutrition facts labels. We have to pay the rent and the help (and the label supplier) so prices are higher than at Trader Joe's. We have no set markup - every product we carry has different import and transport issues so we kinda just wing it until it seems fair to you and also makes business sense to us. If something seems overpriced, please tell us - we're sensitive about it. ;-)
Trader Joe's has no locations in Canada. Canadians who live in British Columbia's Lower Mainland can access the store at 2410 James Street, Bellingham, Washington or the many located further south in the Seattle metropolitan area. But this requires them to travel, to have a passport, to brave the line at customs, to use American money, etc. Pirate Joe's will do all that for them, and allow them to buy in comfort using Canadian money in Kitsilano.
One way Trader Joe's could look at this is they were getting a free ride into the Canadian market. Pirate Joe's paid them exactly what they would have been paid had the same customers all driven down to Bellingham and bought the products there. If Trader Joe's wanted to enter Canada, it would have to deal with export and import issues, Canadian labeling issues, Canadian taxes, Canadian employment law, the foreign exchange issue, and the price of Vancouver real estate, to name just a few. Instead, they just make sales at retail to Pirate Joe's, owe him nothing for the service of advertising their products in Canada in the best possible way, or for affixing Canadian labels to the goods, handling the taxes, leasing space, putting up a website or anything else.
Instead, Trader Joe's sued Pirate Joe's in federal court in Seattle.
And, so far, has lost.
Pirate Joe's is actually just an assumed name of Michael Norman Hallatt, who is a Canadian citizen with permanent residency in the United States. Thus, Trader Joe's could sue him in the United States and in federal court.
The basic claim was a Lanham Act claim. This is the main trademark act in the United States, but the question that Judge Marsha Pechman had to answer was whether it has extraterritorial impact. In other words, in these circumstances, did the purchase of these goods in the United States at full retail price and importation, legally according to Canadian customs, into Canada violate American law?
Under Ninth Circuit precedent, a Lanham Act claim can have extraterritorial effect under a three prong test:
- The defendant's action creates some effect on American foreign commerce
- The effect is sufficiently great to present a cognizable injury to plaintiff under the Lanham Act
The interests of and links to American foreign commerce are sufficiently strong in relation to those of other nations to justify an assertion of extraterritorial authority.
The court determined, on a motion to dismiss, that Trader Joe's could not meet these tests. The court relied on a Ninth Circuit decision involving a fight between Mike Love and Brian Wilson, both former Beach Boys. Wilson had had a CD that included covers of old Beach Boys hits distributed with the Daily Mail in England to promote his "Smile" album and concerts. Love, who had the right to the Beach Boys trademarks, sued. But the Ninth Circuit found that any injury to him was not in the American market. Similarly, Trader Joe's could not show that it was injured at all in the American market, since it had received literally as much money as it would have if Pirate Joe's customers had crossed the border and bought the goods in Bellingham.
A far more interesting question would be what would happen if Trader Joe's wanted to open stores in Canada. But that would represent issues of Canadian law that should be decided by Canadian courts. Here, Judge Pechman's decision that Pirate Joe's is not damaging Trader Joe's in the United States seems correct.
How can Pirate Joe's survive, given that it obviously has to mark up Trader Joe's prices significantly to cover its costs and some profit? The answer lies in the price differential between the United States and Canada. A decade ago, I spent a month in Canada when the Canadian dollar was at about 62 cents U.S. Now it is essentially par, but Canadian prices have risen, not fallen, as the value of their dollar has increased. So Canadians are just used to paying one-third or more higher prices for the same goods in the U.S. Add in the convenience and cachet of the Trader Joe's goods available on a store shelf in Kitsilano, and the business model makes some sense.