Tag: federal

A Cereal. A Rabbi. A Peppercorn.

What can you say about an internet contracting strategy that died? I’m referring, of course, to General Mills’ abortive attempt to include new terms of service on all its internet and social media products, including an agreement to arbitrate and to waive any right to a class action, that came and went so fast I … Continue Reading

FDA Issues Warning Letters to Manufacturers of Caffeinated Alcoholic Beverages

The following is authored by guest blogger Jake Storms, from the Alcoholic Beverages Law Blog. In an update to an earlier blog post, the FDA issued warning letters today to four manufacturers of caffeinated alcoholic beverages. The FDA stated in the letters that caffeine added to malt alcoholic beverages was an “unsafe food additive ” … Continue Reading

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

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

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

Improved Surveillance Will Lead to More Food-Borne Illness Claims

We’ve explained previously in this blog why increased surveillance by state and federal agencies will lead to detection of more outbreaks (and, therefore, more legal exposure). Others seem to agree. Law360 published a nice interview with Jim Neale at McGuire Woods, another lawyer experienced in the food liability arena ( a Law360 subscription is needed … Continue Reading

Court Rules That Retailers Have No Duty to Investigate Suppliers Compliance with Organic Regulations

An important ruling was issued last week dismissing claims that milk produced by an organically certified dairy and labeled as organic was not really organic. Plaintiffs in the action asserted violations of various states’ laws because they claimed that they paid more for the milk because it was labeled as "organic.” A federal judge in … Continue Reading

Judge Denies Class Action Status in McDonald’s French Fry and Hash Brown Litigation

A lawsuit claiming that McDonald’s deceived the public about ingredients in its french fries and hash browns will not proceed as a class action. A federal judge in Chicago has denied the plaintiffs’ motion for class certification, characterizing the proposed class and subclasses as “too indefinite and overbroad.” According to the court’s opinion, the potato suppliers … Continue Reading

Kellogg Co. Agrees to Settle False Advertising Claims

Cereal maker Kellogg Company has entered into a consent agreement with the U.S. Federal Trade Commission to settle charges that certain Kellogg advertisements contain false or misleading statements. At issue in the FTC’s complaint are statements from Kellogg’s advertising that eating a bowl of Kellogg’s Frosted Mini-Wheats cereal for breakfast is clinically shown to improve … Continue Reading

FDA Seeks Input on Intentional Adulteration of Products

The Food and Drug Administration has announced an effort to explore the intentional adulteration of products to increase a producer’s bottom line. So-called “economically motivated adulteration,” or EMA, is the topic of an FDA-sponsored public meeting to be held on May 1 in College Park, Maryland. The meeting follows last year’s concerns about products tainted with … 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

Another High-Profile California Labeling Case

Center for Science in the Public Interest (CSPI) recently filed a putative class action in federal court in the Northern District of California claiming that Glacéau’s VitaminWater is mislabeled under California law. This suit comes on the heels of the recent Ninth Circuit decision that remanded the Gerber foods case. We previously discussed the Gerber … Continue Reading

Supreme Court Asked to Hear Preemption Case Involving Methylmercury; FDA Issues Draft Documents Regarding Consuming Commercial Fish

By Guest Blogger Bryan Anderson The maker of Chicken of the Sea products has asked the U.S. Supreme Court to grant certiorari in a case we reported on involving preemption of state-law tort claims. In August 2008, the Third Circuit in Fellner v. Tri-Union Seafoods, LLC reversed the district court and held that Food and … Continue Reading

When Is Labeling Misleading and Actionable Under State Law? Is There Any Clearly Understood Standard?

A recent Ninth Circuit case again raises serious questions as to whether there are any clearly defined legal standards as to when a food label is misleading and when it’s not. Manufacturers who are in compliance with federal standards for labeling may still be liable under state law. In Williams v. Gerber, the Ninth Circuit, … Continue Reading

Salmon Labeling Probably Headed to Supreme Court

The U.S. Supreme Court  signaled last week that it may review a California Supreme Court decision finding that federal law does not preempt claims for violations of state consumer protection laws concerning “selling artificially colored farmed salmon without disclosing to . . . customers the use of color additive.” Following a petition for certiorari filed … Continue Reading

King County Menu Labeling Goes into Effect August 1, 2008–Yet Another Call for Preemption?

Effective August 1, King County, Washington, will impose the strictest menu labeling law in the nation. King County’s law imposes menu labeling requirements, on restaurant chains that have the following characteristics: 1. The same name. 2. Operating permits from Public Health—Seattle and King County. 3. Fifteen or more locations in King County or nationwide—this legislation does … Continue Reading
LexBlog