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FDA Proposes Draft Guidance on Mandatory Recall Authority

One key element of the 2011 Food Safety Modernization Act was the Act’s grant to FDA of powers to force a product recall.  Prior to FSMA, FDA had no such authority, and was required to use other authorities to “lean” on companies to conduct a recall.  Now, FDA may force a recall where it finds that there is a reasonable probability that food is adulterated or misbranded and the use of or exposure to the food will cause serious adverse health consequences or death to humans or animals.  In addition to satisfying this fairly substantial threshold, the responsible party must refuse to voluntarily conduct a recall.  The result is that FDA has initiated its mandatory recall authority only a couple of times, notably with respect to Kasel Associates Industries, Inc.’s pet treats and dietary supplements manufactured by USPLabs.

FDA recently issued draft nonbinding guidance regarding its mandatory recall authority.  The draft

PROPOSITION 65 CLAIMS AND 4-MEI: PROVING THAT DEFERENCE TO THE FDA IS NECESSARY.

March 26, 2015

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Plaintiffs have made food labeling class actions a rapidly-growing field in recent years, particularly in the Northern District of California. They typically rely on California’s regimen of consumer fraud statutes when bringing those claims. California also has Proposition 65, which requires labeling of substances that a state agency concludes may cause cancer or birth defects. The threshold for labeling is quite low, meaning that even the most mundane items often include—or should include—warnings. Indeed, plaintiffs recently have used the “lack” of a Proposition 65 label on food products as a basis for consumer fraud and other claims even though the Food and Drug Administration finds no health risk from the relevant ingredient and already dictates labeling requirements regarding the ingredient. Such lawsuits are irreconcilable with the purpose of federal food labeling requirements.

Proposition 65 And Its Relationship To 4-MeI In Beverages.

In the past

A new circuit split regarding food labeling consumer fraud claims

March 18, 2015

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A recent opinion from the Ninth Circuit may cause considerable confusion regarding what food manufacturers may put on their labels outside of the familiar Nutrition Facts Label. In fact, the opinion filed March 13, 2015, is at odds with earlier unpublished decisions from the Ninth and Third Circuits.

Reid v. Johnson & Johnson, No. 12-56726 (9th Cir. Mar. 13, 2015), is part of the wave of food labeling class actions making its way through the Ninth Circuit. That plaintiff alleged a host of consumer fraud claims based on the defendants’ Benecol vegetable oil-based spread. Benecol’s label prominently states that the product contains “No Trans Fat.” In truth, the product contains small amounts of trans fat, which the plaintiff contends is quite harmful to human health.

The difficulty that Reid presents is that FDA regulations require that the Nutrition Facts Label on Benecol state that

USDA Approves Genetically Modified Apples, But Will They See The Shelves?

February 22, 2015

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On  February 13, 2015, the Department of Agriculture’s Animal and Plant Health Inspection Service approved the Arctic apple, a genetically modified strain of apple developed to resist browning.  A Canadian company, Okanagan Specialty Fruits Inc., first filed its petition for deregulation nearly three years ago.  The technology works by “turning off” the production of a certain enzyme that is produced when an apple is cut or bruised.  The Arctic apple is the one of the first deregulated genetically modified products designed to promote consumer-preferred traits, as opposed to traits like herbicide tolerance that promote certain production practices.

Notwithstanding APHIS’s approval, the question still remains of whether and how widely producers and consumers will adopt the technology in today’s environment surrounding GMOs.  Because it will be at least five to seven years before Arctic apple trees can bear fruit that can be marketed, producers will be required to do some significant

Food And Beverage Manufacturing Processes As The Bases For Consumer Class Action Claims

February 18, 2015

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Recent food labeling class actions suggest that plaintiffs’ counsel are broadening the scope of these types of claims. Of course, we are familiar with the more typical food labeling class actions, such as those challenging “all natural” labels or disputing whether a food product complies with federal law when noting it has “no added sugar.” Those traditional claims focus on the ingredients. The recent complaints mentioned in this article, however, suggest that class counsel may now focus on subjective statements regarding the processes used to make foods or beverages.

Social Responsibility Statements.

Jablonowski v. Chiquita Brands, Inc., No. 3:15-cv-00262 (S.D. Cal.), is a complaint filed by the well-known class action firm of Hagens Berman Sobol Shapiro LLP. It alleges that Chiquita falsely advertises on its website that it requires ecologically friendly farming practices. In “truth,” a Guatemalan company from which Chiquita buys hundreds of millions of pounds of bananas each

The 9th Circuit will address food labeling class actions

February 4, 2015

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The 9th Circuit will address food labeling class actions

February 4, 2015

Authored by: James Smith

Attached is an article from BNA regarding an amicus brief that Bryan Cave prepared for the Washington Legal Foundation, as well as an amicus brief from the U.S. Chamber of Commerce, in Jones v. ConAgra.  Jones should be an important decision from the Ninth Circuit regarding the implied ascertainability standard in consumer class actions and the standard for evaluating the adequacy of regression analyses proposed as tools to quantify class-wide injury in class actions generally.  A copy of our entire brief is here.

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