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Food Liability Law Blog

Discussion of emerging legal threats to the food industry.
By Kenneth Odza

Post Frequency: 2.2/day

Last Entry: August 19, 2016 at 16:09:48

A Tale of Two Orders

Posted on September 10, 2010
Two recent court orders in motions to dismiss consumer fraud class actions illustrate the fine lines that exist in the analytical process courts engage in when determining whether or not a claim may continue forward. In Zeisel v. Diamond Foods, Inc., the U...

SAVE THE DATE FOR THE ABA'S FOOD & SUPPLEMENTS FIRST ANNUAL WORKSHOP AT COCA-COLA IN ATLANTA THIS WINTER

Posted on September 09, 2010
Thursday, February 17, 2011 - Hosted by The Coca-Cola Company. Please save the date for this first annual one-day CLE workshop sponsored by ABA's Food and Supplements subcommittee that will include panels on the impact of federal statutory and regulatory reform on the food industry, state consumer laws and consumer class actions related to food packaging, labeling, and marketing, the evolving science of food safety and technology, ethical considerations in the labeling of bioactive foods, and in-house counsel's top predictions for the future of food regulation and litigation...

Food Liability Blog Included Among Initial Nominees for LexisNexis Top 25 Business Law Blogs

Posted on September 01, 2010
We're honored that LexisNexis has included this blog among its initial nominees for "Top 25 Blogs 2010, Business Law Communities." Please consider submitting to LexisNexis as soon as possible your comments on this blog and whether you think it should be included among the Top 25...

A Reportable Food Registry Toolkit

Posted on August 30, 2010
This article was first published on August 27, 2010 in Food Chemical News as part of its "On the Front Burner" series. In its first year, the FDA's Reportable Food Registry has proven itself to be a high-stakes game changer. The ticking of the RFR's 24-hour reporting deadline forces a company to make snap decisions that might affect its entire business (not to mention the health of its customers)...

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Consumers and Gulf Shrimp: Watch What We Do, Not What We Say

Posted on August 25, 2010
The quote, "Watch what we do, not what we say," is attributed to John Mitchell, Nixon's first attorney general. It can apply, however, to the behavior of consumers with respect to shrimp from the Gulf of Mexico, and that will be watched carefully everyone from shrimp fishers to the owners of your local fish market...

The Great Egg Recall of 2010: Another Review of Lessons Already Taught

Posted on August 20, 2010
You have probably heard about the great egg recall of 2010, which has required Wright County Eggs of Galt, Iowa to recall an ever-growing number of shell eggs because of fears of salmonella enteriditis. An interesting issue here is the non-overlapping jurisdiction of USDA and FDA over eggs in the shell...

5-Hour Energy v. 8-Hour Energy: Monopolization Claim Flops

Posted on August 19, 2010
In an unfair competition suit under 15 U.S.C. § 1125, the king of the two-ounce energy shot, 5-Hour Energy, is suing the makers of 8-Hour Energy in the Eastern District of Michigan, claiming that 8-Hour Energy falsely associates itself with 5-Hour Energy...

"I Can't Believe It's Not Implausible" - Iqbal/Twombly Doctrine Does Not Result in Dismissal of Yumul Claims

Posted on August 18, 2010
As our own Ken Odza recently blogged, the plausibility pleading standard articulated by the Supreme Court in the Iqbal and Twombly cases resulted recently in the FRCP 12(b)(6) dismissal of misrepresentation claims against Unilever. That ruling seemed to indicate that consumer fraud claims would be vulnerable to motions for dismissal...

ACI Food-Borne Illness Conference in Chicago October 27 - 28, 2010

Posted on August 10, 2010
American Conference Institute ('ACI') will hold its 4th National Conference on Food-Borne Illness Claims in Chicago, October 27 to 28. Highlights of this year's conference will include: • Appearances by a number of current and former high-level regulators such as Dr...

Product Liability - Protect Yourself and Your Business

Posted on August 09, 2010
This is the title of a presentation I'll be giving at the American Cheese Society's (ACS) annual meeting in Seattle. I'll be speaking along with Marc Baker and Jill Perucca from the Elliott, Powell, Baden & Baker insurance agency at 3:30 p.m. on August 27...

Variations of Organic Labeling

Posted on August 02, 2010
By Guest Blogger Elaine Albrich This post also appears on the Alcoholic Beverages Law Blog Figuring out what information must be on your wine label can be tedious. Adding terms like "organic" or "sustainably-grown" can be even more challenging...

How Virgin is Your Olive Oil?

Posted on July 28, 2010
The Agricultural Marketing Service (AMS) of the U.S. Department of Agriculture is finally revising its standards for olive oil, promulgated way back in 1948, to bring them in line with the International Olive Council (IOC), an organization established under United Nations auspices that represents 98% of the world's olive oil production, nearly all in the Mediterranean basin (the U...

The Show Goes On: USDC Allows Vitaminwater Lawsuit to Proceed

Posted on July 27, 2010
In an opinion issued on July 21, 2010, Judge John Gleason of the United States District Court for the Eastern District of New York largely denied the defendant's motion for dismissal and held that 10 of the 13 claims in a class action suit brought against Coca-Cola for alleged unlawful health claims on its Vitaminwater drinks could proceed...

Green Chemistry Initiative Regulations Released For Comment

Posted on July 19, 2010
By Guest Blogger Lee Smith California is on the cusp of approving draft regulations that are proposed for California's new Green Chemistry Initiative (GCI) .Green chemistry, per the initiative, is the process for reducing or eliminating the use of hazardous materials by transitioning away from managing toxic chemicals at the end of the lifecycle, and instead reducing or eliminating their use from the start...

Stoel Rives and ACC Mountain West To Host Nutrition Law Symposium

Posted on July 16, 2010
By Guest Blogger David Pache We are excited to announce the Sixth Annual Nutrition Law Symposium presented by Stoel Rives LLP and the Association of Corporate Counsel, Mountain West Chapter. The Symposium will be held at the Thanksgiving Point Golf Club in Lehi, Utah from 8 a...

Regulatory Compliance Alone Is Not Enough: Understanding and Mitigating Consumer Fraud Claims

Posted on July 14, 2010
Click on the image below to view the slide-deck from the presentation that I recently gave with Scott Rickman from Del Monte at ACI's summit on Food Safety and Regulatory Compliance in Chicago. The ACI summit was a nice introduction to food regulation byFDA, USDA, FTC, EPA and DHS...

Introducing The Alcoholic Beverages Law Blog

Posted on July 14, 2010
By Guest Blogger Stephanie Meier Stoel Rives' Food, Beverage and Hospitality Group have launched a new blog focused on the alcoholic beverage industry. The Alcoholic Beverages Law Blog provides wineries, breweries, distilleries, cideries, distributors and importers with articles and information across a broad spectrum of state and federal alcohol beverage law...

Insurer Says Coverage for HVP Recall "Limited or Precluded"

Posted on July 12, 2010
Employers Fire Insurance Company has brought a declaratory relief action against Basic Food Flavors, Inc. in the United States District Court for the District of Nevada. Employers Fire says in its complaint that its policy "contain[s] certain terms, provisions, limits, conditions, exclusions and endorsements that limit or preclude coverage to Basic Food with respect to losses, costs or expenses incurred as result of the HVP Recall...

Strategy to Defeat Consumer Class Claims

Posted on July 08, 2010
As we've discussed previously in this blog, the Supreme Court's plausibility pleading standard, as articulated in the Iqbal and Twombly cases often provides a rapid (and relatively inexpensive) pathway to defeat consumer fraud claims. At the ACI food regulatory conference last week, we discussed a strategy to take advantage of the plausibility pleading standard in jurisdictions that have liberal class certification standards...

AMA Calls for More Accurate Fat Labeling Rules

Posted on June 16, 2010
At its recent annual meeting, the American Medical Association ('AMA') agreed to urge the Food and Drug Administration ('FDA') to adopt more accurate labeling standards regarding trans fats and saturated fats used in food products. Current FDA rules allow nutrition labels to list saturated and trans fats as zero, so long as the product contains less than 0...

Stakeholders Debate Competition in the Poultry Industry at USDA/DOJ Workshop

Posted on June 11, 2010
It's been a couple weeks since chicken farmers and processors met with Secretary of Agriculture Tom Vilsack and Attorney General Eric Holder in Normal, Alabama to discuss competition in the poultry industry. The May 21 USDA/DOJ workshop was the second such meeting conducted by the agencies in their quest to review enforcement policy relating to competition in agriculture...

Denial of Insurance for Consumer Fraud/Lanham Act Claims: Blaming the Product, Not the Advertising?

Posted on June 09, 2010
UPDATE: For those interested in reviewing the Axis policy discussed in the motion, it can be linked here. I'm often asked in my practice about the availability of insurance coverage for claims by consumers or competitors that products are deceptively labeled, marketed or advertised...

Jim Prevor's Traceability Answers

Posted on June 08, 2010
We recently asked for comments on Jim Prevor's story about traceability. While there was a loud silence in our comments in box (still happy to take them), today we got a long response from Jim himself in his latest Perishable Pundit. I commend it to you...

Dismissal of "I Can't Believe It's Not Butter" Claims: Another Example of Iqbal/Twombly Succeeding Where Preemption Cannot

Posted on June 07, 2010
Judge James Ware dismissed on an FRCP 12(b)(6) motion putative class claims against Unilever alleging violations of the California Consumers Legal Remedies Act , Unfair Competition Law, and False Advertising Law . Judge Ware's decision can be found here...

Updated RFR Guidance from FDA: Possession Is More Than 9/10ths

Posted on June 02, 2010
FDA recently released updates to its Draft Industry Guidance for the Reportable Food Registry ('RFR'). The RFR, not rolled out until the fall of 2009, is still new to many companies. FDA, overwhelmed by the information coming through the RFR, is still trying to determine how to use the information submitted to the RFR it and how to advise industry...

FTC Announces Intent to Issue Compulsory Process Orders Regarding Marketing of Food and Beverages

Posted on May 26, 2010
In a May 25, 2010, Federal Register Notice, the Federal Trade Commission (the 'FTC') announced its intention to issue compulsory process orders to 48 food and beverage manufacturers, distributors, marketers, and quick service restaurant companies. The proposed orders seek information concerning the companies' marketing expenditures targeted toward children and adolescents, and nutritional information about the companies' food and beverage products marketed to children and adolescents...

Five Tips for "Green" Advertising

Posted on May 21, 2010
By Guest Blogger David Pacheco This post also appears on the Essential Nutrition Law Blog Yesterday, Stoel Rives' Salt Lake City office hosted a seminar on Advertising Law with Catherine Lake, Josh Gigger, and myself presenting. As part of the seminar, I offered some tips on avoiding legal problems when advertising the environmental friendliness of your goods or services...

USDA and DOJ Scrutinize the Meat Packing Industry

Posted on May 20, 2010
Competition in the meat packing industry is currently a central focus of the Antitrust Division of the Department of Justice ('DOJ') and the USDA. In 2008, the DOJ and 16 states challenged the merger of JBS and the National Beef Packing Company, leading the parties to abandon the deal...

Raw and Uncut: Wisconsin Governor Vetoes Raw Milk Bill

Posted on May 20, 2010
'Got Milk?' The answer to that question may not be as cut and dried as you might believe, at least in Wisconsin. In a May 19 letter to the state Senate, Wisconsin Governor Jim Doyle explained his rationale behind his veto of Senate Bill 434, which would have authorized dairy farmers with a Grade A dairy farm permit to sell unpasteurized milk, buttermilk, butter, and cream directly to consumers...

New Legislation Seeks to Soften FDA Regulation of Nutritional Supplements

Posted on May 19, 2010
By Guest Blogger Jonathan Stagg This post also appears on the Essential Nutrition Law Blog One major complaint of companies marketing nutritional supplements is that the FDA severely limits their use of scientific findings in promoting the health benefits of their products...

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