Tag: Act

On the Horizon: TTB and FDA to Jointly Consider Additives to Alcoholic Beverages

Coauthored by Susan Johnson As we have blogged about previously, the Food and Drug Administration (the “FDA”) has been closely monitoring the appropriateness of additives to alcoholic beverages, with a particular emphasis on caffeinated alcoholic beverages. A recent release from the Alcohol and Tobacco Tax and Trade Bureau (the “TTB”) indicates that the two agencies … Continue Reading

Cleaning Up the Docket – Northern District of California Dismisses Lanham Act Claim Alleging Mislabeling of Personal Care Products

As we have blogged about, litigation regarding product labeling has been a hot topic within the food and beverage industry. A recent decision from the Northern District of California could hold interesting implications for Lanham Act claims centering on the labeling of products as “organic.” While the case, One God Faith, Inc. v. Hain Celestial … Continue Reading

Court’s Decision on CR 12(b)(6) Motion In Zupnik: FFDCA Preemption Under Further Attack and Twombly Ignored

We previously cited the motion to dismiss in Zupnik, et al. v. Tropicana Products, Inc. as an example of good pleading practice in a putative consumer fraud class case. United States District Judge Dale S. Fischer apparently disagreed with our assessment, this week issuing an order denying the motion. Tropicana’s lead argument was a failure of … Continue Reading

Third Circuit Rules that Food Service Management Companies and Distributors are Not Competitors for Robinson-Patman Act Analysis

If a manufacturer is selling the exact same goods to someone else for 59% less than it will sell to you, it would seem natural that you’d pick up the phone and call your lawyer and sue someone, wouldn’t it?  In particular, this would seem to be a classic violation of the Robinson-Patman Act,15 U.S.C. … Continue Reading

Levine v. Vilsack: The Ninth Circuit Rules the Humane Methods of Slaughter Act Provides No Remedy

The Ninth Circuit ruled that there is no remedy available for an alleged misinterpretation of the Humane Methods of Slaughter Act of 1958 to exclude poultry from its scope. And a plaintiff who sued only under that statute could not force the Secretary of Agriculture to make an interpretation under a different statute, the Federal Meat Inspection Act, that poultry were an "amenable species" to be placed under the slaughter provisions of that completely separate law. Thus, plaintiffs lacked standing to pursue a claim in federal court.… Continue Reading

Oil and Water Meet Caffeine and Alcohol: FDA to Look into Safety of Caffeinated Alcoholic Beverages

By Guest Bloggers Tyler Anderson and Stephanie Meier On November 13, the FDA notified nearly 30 manufacturers of caffeinated alcoholic beverages that the agency intends to look into the safety and legality of their products. As the FDA explained in a news release announcing this action, under the Federal Food, Drug, and Cosmetic Act any … Continue Reading

Challenges of a Lanham Act Injunction in Food Cases: Lessons from an Advertising Battle Between Two Major Consumer Products Companies

The recent decision in Stokely-Van Camp, Inc. v. Coca-Cola Co. (i.e., Gatorade vs. Powerade) illustrates the hurdles a company has to overcome to convince a court to stop a competitor from using arguably false advertising. Stokely-Van Camp, Inc. (“SVM”) was challenging advertising that compared Powerade ION4 to Gatorade Thirst Quencher. Judge John G. Koeltl of the Southern … Continue Reading

Bottled Water Association Sues Over Water Bottle Ads

The International Bottled Water Association (IBWA) is taking aim at an advertising campaign for Eco Canteen stainless steel water bottles, claiming the ads wrongly suggest that plastic water bottles are unhealthy and unsafe. In a lawsuit filed in the U.S. District Court for the Western District of North Carolina, IBWA claims that Eco Canteen’s television … Continue Reading

Nolan v. Ocean Spray Verdict: The PACA Angle

Jim Prevor, the author of the Perishable Pundit blog and a man who has probably forgotten more about the produce industry and its practices than many will learn in a lifetime, has been blogging constantly about the lawsuit brought by Theresa Nolan, her company The Nolan Network and her late husband Jim against Ocean Spray … Continue Reading

Food Safety Legislation Proposed by House – User Fees and Traceability Are Among Highlights

Last week, members of the U.S. House of Representatives Committee on Energy and Commerce released a discussion draft of the “Food Safety Enhancement Act of 2009.”   The draft proposes beefing up the FDA registry of “all food facilities serving American consumers” and charging every facility $1,000 per year to fund FDA food safety activities. … Continue Reading

Update: Supreme Court Declines Review of Methylmercury Case With Potential Preemption Implications

An update to a case we’ve been following: the U.S. Supreme Court has refused to review a decision by the U.S. Court of Appeals for the Third Circuit involving state-law claims over methylmercury content in canned tuna. The Supreme Court’s order in Tri-Union Seafoods, LLC v. Fellner leaves in place the Third Circuit’s ruling that … Continue Reading

Washington Consumer Protection Law

The ABA Section of Litigation, Products Liability Committee will soon publish its 50-state survey on consumer protection statutes. Bryan Anderson and I coauthored the chapter for the state of Washington. As described in our article, Washington’s Consumer Protection Act, RCW 19.86.010, et seq., is quite broad:   The Act is modeled after federal statutes, primarily the … Continue Reading

Update on Criminal Risk Management: The Peanut Case

Peanut Corporation of America's way of dealing with positive salmonella tests for its peanut products is a case study in exactly what not to do to avoid criminal prosecution. The FDA's investigation indicates that PCA shipped product before test results came in and then continued to ship after receiving positive tests. This is precisely the kind of actions that are likely to compound, not lessen, the likelihood of criminal prosecution. Indeed, the FBI is now involved in the case, assisting the FDA's Office of Criminal Investigations.… Continue Reading

Avoiding Criminal Prosecution Under The FFDCA

By guest blogger Per Ramfjord The FDA’s recent announcement that it is pursuing a criminal investigation of Peanut Corporation of America, arising out of the Salmonella-driven peanut product recall, is sure to raise concerns with executives in food product companies throughout the country. White House Press Secretary Robert Gibbs’s comment that the Obama administration intends … Continue Reading
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