Currently browsing posts about: Lawsuits

By a vote of 6-3, the Supreme Court struck down the Chevron doctrine, which said that the courts were required to uphold regulatory decisions of federal agencies unless Congress said otherwise.  The court majority called the doctrine “fundamentally misguided.”

The decision involves food politics in two ways: (1) the case, Loper Bright Enterprises v. Raimondo, involved fishing, and (2) it has profound implications for food regulations.

(1) The case, as described in SCOTUSblog: “Can fishermen be required to pay for federal monitors? And by the way – should Chevron be overruled?”

Summary: The National Marine Fisheries Service had been requiring “the herring industry to pay for the costs, estimated at $710 per day, associated with carrying observers on board their vessels to collect data about their catches and monitor for overfishing… the agency reimbursed fishermen for the costs of the observers.”  Commercial fishing companies, which do not like having observers on board, challenged the Chevron doctrine.  Koch Industries paid for the challenge, as part of its long-standing deregulatory agenda.

Significance: businesses objecting to agency regulations can sue the agencies and let judges decide.

The courts (politically appointed judges) can overrule the agencies ‘ public health and safety regulations.

(2) Implications for food, nutrition, and public health regulations

The decision is widely interpreted as putting food and nutrition policies at grave risk, particularly those of the FDA.  Here is a preliminary list of what is at stake.

• FDA: food safety, sodium, front-of-package nutrition labeling, the healthy front-of-package label claim, GRAS determinations, dietary supplements, chemical toxins.
• Many of these proposed regulations were already at risk because of disinterest or lack of understanding by agency officials who seem unwilling to argue forcefully for public health measures.  This lack is seen most clearly in a Wall Street Journal interview with Jim Jones, the FDA’s new Deputy Commissioner for Human Foods, who appears uninterested in taking on regulations to reduce production as well as consumption of ultra-processed foods. [this discussion runs from 13:20 to 17:02].
• USDA: meat and poultry safety, Salmonella and E. coli as adulterants, pesticides, herbicides, meat industry consolidation reduction, safe handling instructions, labeling requirements.
• EPA: slaughterhouse pollution, water quality, PFAS
• FTC: dietary supplement health claims

Comment: There are undoubtedly more regulations in play that I haven’t thought of.   Food companies (like businesses in general) do not like being regulated.—too cumbersome, too expensive, too intrusive, too limiting on profits.

Now, a company fviewing any of these rules as inconvenient can take the FDA to court.  Doing so:

• Leaves scientific and public health matters to the personal views of judges.
• Ties up federal agencies in legal challenges.
• Reduces agency resources for inspections and other regulatory work.
• Casts a chill on developing new regulations development.

This decision has been applauded by the business community.

For those of us wanting diets to be healthier and more sustainable, it’s a disaster waiting to happen.

I’ll bet we won’t have to wait long for the first cases to be filed.

Just in time for the Thanksgiving holiday, government agencies are, at long last, taking action on food issues.

Two examples:

I.  The Federal Trade Commission has issued warning letters to trade associations and dietitian-influencers they paid to promote sugar and aspartame on social media.

The letter to AmeriBev detail concerns about posts on Instagram and TikTok by Valerie Agyeman, Nichole Andrews, Leslie Bonci, Keri Gans, Stephanie Grasso, Cara Harbstreet, Andrea Miller, Idrees Mughal, Adam Pecoraro, and Mary Ellen Phipps, each of whom also received an individual warning letter.

The letter to The Canadian Sugar Institute expresses concerns about Instagram posts by Jenn Messina and Lindsay Pleskot, each of whom also received an individual warning letter.

The letter to American Beverage (formerly the American Beverage Association) gives the “or else.”

We strongly urge you to review your social media policy. You should also review the Instagram, TikTok, and other social media posts made by your endorsers as to whether they contain sufficiently clear and conspicuous disclosures of any material connections to the American Beverage Association. To help guide your review, please see the Endorsement Guides3 and the staff publication FTC’s Endorsement Guides: What People Are Asking. Violations of the FTC Act may result in legal action seeking a federal district court injunction or an administrative cease and desist order

This action comes as a result of the investigative report in the Washington Post (it is cited in the letter).  I wrote about the Post article here and also posted the the response from the Academy of Nutrition and Dietetics.

The Post investigative team had this to say about the FTC’s warning letters.

Federal regulators announced warnings against two major food and beverage industry groups and a dozen nutrition influencers Wednesday, as part of a broad action to enforce stricter standards for how companies and social media creators disclose paid advertising.

Comment: Let’s hear it for the power of the press!

II.  New York State Attorney General sues PepsiCo for plastic pollution

New York Attorney General Letitia James today filed a historic and groundbreaking lawsuit against PepsiCo Inc. (PepsiCo) for harming the public and the environment with its single-use plastic packaging. The Office of the Attorney General (OAG) found that single-use plastic produced by PepsiCo contributes significantly to high levels of plastic pollution along the Buffalo River, pollution that is contaminating drinking water and harming wildlife.

…PepsiCo, which is headquartered in New York state, manufactures, produces, and packages at least 85 different beverage brands and 25 snack food brands that predominantly come in single-use plastic containers. Plastic packaging has become a persistent and dangerous form of pollution along the shores of the Buffalo River and in its watershed. In 2022, OAG conducted a survey of all types of waste collected at 13 sites along the Buffalo River and its tributaries and found that PepsiCo’s single-use plastic packaging was the most significant. Of the 1,916 pieces of plastic trash collected with an identifiable brand, over 17 percent were produced by PepsiCo. PepsiCo’s plastic packaging far exceeded any other source of this identifiable plastic waste along the river, and it was three times more abundant than the next highest contributor.

According to the New York Times, PepsiCo:

has said it aims to make all of its packaging “recyclable, compostable, biodegradable or reusable” by 2025. The company also says it wants to cut virgin plastic by 50 percent by 2030, compared with 2020.

The company is now being held accountable for that promise.  What a concept!

Comment: While soda-and-bottled-water companies profess commitments to reducing plastic waste, they fight recycling laws (those that require bottle deposits returnable when the bottle is returned) in every way possible.  Attorney General James is doing something quite remarkable; she is holding PepsiCo accountable for some of the externalized costs of producing sodas, bottled water, and snacks.  I hope this sets a strong precedent.  Kudos!

Sarah Vogel.  The Farmer’s Lawyer: The North Dakota Nine and the Fight to Save the Family Farm.  Bloomsbury, 2021.

This book comes with an impressive collection of blurbs from the likes of Willie Nelson, Dan Barber, Ricardo Salvador, and Fred Kirschenmann, and, fittingly, with one from John Grisham on the cover because much of the book reads like something out of one of his thrillers.

The book tells two stories, both amazing.

The first is how Vogel, as a young lawyer, filed a class-action suit representing small farmers who had been treated terribly by a USDA agency, the Farmers Home Administration.  This agency started during the Great Depression as a way to help small farmers survive from year to year through loans and other measures.

But early in the Reagan years, the agency switched to treating farmers harshly, quickly foreclosing on unrepaid loans, garnishing bank funds, and forcing the farmers off their land—in violation of the agency’s own rules.  Most of the book is about how Vogel took on these cases, pursued them carefully, and, incredibly, won.

The second story is about the personal cost of this case to Vogel, who worked without pay during the years this litigation was in the works.  Without a salary, she couldn’t keep up her own mortgages, lost two houses, and lived hand to mouth.

It’s hard to believe anyone would take on a case like this at such risk, but the book is also about her dedication to a cause she deemed too important to abandon.

The book is packed with legal details but so well written and is so compelling that I could hardly put it down.

And the good guys won!

For that alone, the book is inspirational.  And I love the way she ends it.

The North Dakota Nine had small to midde-sized farms.  In the 1980s, their lives were very difficult.  In today’s economy, they wouldn’t have a prayer.  But farmers like them are exactly the kind of farmers we need today: farmers who will love their land, grow crops as well as communities, plant trees, care for their animals, and leave the earth better than when they found it.  In the big picture, farmers like them can help solve global warming, revitalize the countryside, and provide abundant, healthy food…We can save farmers, protect the environment, solve the hunge crisis, and rebuild rural and urban economies from the ground up…if we act soon.

Yes!

Jerry Hagstrom did a review of this book a couple of weeks ago on his Hagstrom Report.  Here’s his list of resources:

 Sarah Vogel
 — “The Farmer’s Lawyer”
 Prairie Public Newsroom – Sarah Vogel: “The Farmer’s Lawyer”
 – Author Sarah Vogel reads from “The Farmer’s Lawyer”
 AgWeek – Thankful for new FFA chapter, affordable food, ag lawyer Sarah Vogel
 Capital Journal – Attorney worked to stop foreclosures during ’80s farm crisis
 The Christian Science Monitor – ‘The Farmer’s Lawyer’ tells a David and Goliath legal story

I am not a litigious person and much prefer to stay out of the legal system.

But I am a big fan of Bill Marler, who represents victims of food poisonings, not least because his lawsuits against companies with sloppy food safety procedures should encourage them to clean up their processes.

I’m not sure what to think of NPR’s account of Spencer Sheehan’s 400 or so lawsuits against food companies for misleading labeling.

The one that triggered off the article is on behalf of a woman suing Kellogg over the number of strawberries in Strawberry Pop-Tarts.

Enriched flour (wheat flour, niacin, reduced iron, vitamin B1 [thiamin mononitrate], vitamin B2 [riboflavin], folic acid), corn syrup, high fructose corn syrup, dextrose, soybean and palm oil (with TBHQ for freshness), sugar, bleached wheat flour. Contains 2% or less of wheat starch, salt, dried strawberries, dried pears, dried apples, leavening (baking soda, sodium acid pyrophosphate, monocalcium phosphate), citric acid, gelatin, modified wheat starch, yellow corn flour, caramel color, xanthan gum, cornstarch, turmeric extract color, soy lecithin, red 40, yellow 6, blue 1, color added.

Some of his other cases:

Keebler and Betty Crocker and others over “fudge” cookies and baking mixes that contained no milkfat.

Frito-Lay alleging it didn’t use enough real lime juice in its “hint of lime” Tostitos.

Coors suggesting its pineapple-and-mango-flavored Vizzy Hard Seltzers are sources of Vitamin C “nutritionally-equivalent” to actual pineapples and mangos.

Snack Pack pudding — advertised as “made with real milk” — actually made with fat-free skim milk.

Many cases targeting vanilla products — soda, soy milk, yogurt, ice cream — that use synthetic vanilla or other flavors alongside or in place of the more expensive natural vanilla.

NPR says

Most of Sheehan’s suits, including the strawberry Pop-Tart cases, allege damages based on the so-called “price premium theory,” which says that products are sold at higher prices than they would have otherwise commanded had the companies marketed them honestly.

Are these cases frivolous or in the public interest?

I’m for anything that gets the makers of ultra-processed foods to advertise them for what they are, not for what they aspire to be.

Hat tip to Lisa Young for sending this one.

Food law used to be so boring that hardly any law schools taught anything about it.  Now it’s a hot topic.  To understand why, take a look at FoodNavigator-USA’s collection of articles, titled Food in the dock: Food & beverage litigation 

• Judge says lawsuit taking issue with added sugar levels in Clif Bar can proceed:  A court has rejected Clif Bar’s motion to dismiss a lawsuit* accusing it of duping consumers by presenting bars that are “loaded with sugar” as wholesome and nutritious – allegations the company describes as “absurd” and “implausible.”.. Read  
• General Mills prevails in false ad lawsuit over sugar content in cereals… after three-year battle:  <General Mills has finally prevailed in a false advertising lawsuit* over sugar levels in its cereals after three years of legal wrangling, with the judge concluding that the plaintiffs “cannot plausibly claim to be misled.”..
• Who is behind THC-infused STONEY PATCH gummies? Mondelēz Canada secures court order to find out: A California court has granted a request from Mondelēz Canada to compel Facebook and Google to release information associated with Instagram and Gmail accounts of a company selling THC-infused gummies under the STONEY PATCH brand… Read
• Tillamook presents deceptive image of milk sourcing strategy, alleges lawsuit; Tillamook ‘adamantly disagrees’:  Tillamook presents a bucolic image of a dairy brand sourcing milk from cows grazing on local small farms, when in fact most of its milk comes from industrial scale factory farms, alleges a lawsuit accusing the firm of deceptive practices… Read
• LaCroix: Natural flavors lawsuit is a ‘classic fishing expedition’:  The legal dispute over the ‘natural’ credentials of LaCroix sparkling beverages is heating up with brand owner National Beverage Corp urging a court in Illinois to enter a protective order shielding it from discovery that it claims would compel it to release trade secrets… Read
• Plant-based ‘meat’ battle heats up in Arkansas as Tofurky challenges ‘unconstitutional’ law: A law (Act 501) coming into force in Arkansas on July 24 puts plant-based brands between a rock and a hard place by restricting the use of ‘meaty’ terms to products derived from slaughtered animals, alleges a new lawsuit filed by Turtle Island Foods (d.b.a. Tofurky)… Read
• PBFA and Upton’s Naturals challenge Mississippi law restricting plant-based and cell-cultured ‘meat’ labeling:  The Plant Based Foods Association (PBFA) and member company Upton’s Naturals have filed a lawsuit in Mississippi challenging a new labeling law that could make using ‘meaty’ terms to describe plant-based and cell-cultured meat subject to criminal penalties… Read
• Fairlife fallout… attorneys weigh in as the lawsuits pile up:  Four class action lawsuits have already been filed against high-protein milk brand fairlife, its founders, and JV partner Coca-Cola over alleged animal abuse at its flagship dairy farm in Indiana, but this could be just the beginning of the company’s legal problems, predict experts… Read

FoodNavigator-USA has collected its recent articles on food industry lawsuits.  As it puts it,

There have been hundreds of class action lawsuits directed against food and beverage companies in the past five years, spanning everything from added sugar, ‘natural’ and ‘healthy’ claims, to glyphosate residues, and alkaline water claims. We take a look at some high profile cases, some emerging hot topics from Non GMO claims to a new wave of kombucha lawsuits, and what’s coming up from the FDA, from plant-based ‘milk’ labeling guidance to a fresh look at ‘healthy’ and ‘natural’ labeling.

I’ve organized these into categories.

GMOs

• And now the food lawsuits… General Mills sued over glyphosate residue post Monsanto $289m verdict: Monsanto has just been ordered to pay $289m in damages to a man who alleged its glyphosate-based herbicide caused his cancer (a ruling it is appealing). But what, if anything, does this verdict mean for food companies manufacturing products containing trace levels of glyphosate?.. Read
• Nestlé USA lawsuit highlights confusion over Non-GMO claims, say attorneys: A lawsuit alleging that Nestlé USA is misleading shoppers with its ‘No GMO Ingredients’ seal is unlikely to make much progress, predict legal experts, but it does highlight the confusion surrounding Non-GMO claims given that the standards underpinning them can differ from one product to another… Read
• The Non-GMO Project may emerge as the big winner from federal GMO labeling legislation: The Non-GMO Project will “only become more relevant” as mandatory GMO labeling kicks in, in part because its scope could be so narrow that consumers will not simply be able to assume that anything without a bioengineered label is automatically Non-GMO, says executive director Megan Westgate… Read

Warnings about chemicals in foods

• ‘Significant increase’ in Prop 65 notices over lead, acrylamide, and cadmium in 2017/18, says Perkins Coie: There has been a significant increase in food and beverage Prop 65 actions in the past five years, with particularly strong growth in notices relating to lead, acrylamide and cadmium, according to new data compiled by attorneys at Perkins Coie… Read
• Amended Prop 65 regulations likely to prompt a significant uptick in litigation, predict attorneys: Amendments to Prop 65 – which requires firms selling products in California to provide warnings if their products expose consumers to 900+ chemicals linked to cancer or reproductive toxicity – will likely trigger a sharp rise in litigation as manufacturers struggle to get to grips with the new rules, predict attorneys… Read

Compliance with labeling and health claims requirements

• RXBAR sued over minimalist labels, ingredients declaration; but case is a stretch, say legal experts: ‘We tell you what’s on the inside on the outside’ protein bar brand RXBAR has been hit with a proposed class action lawsuit* by the same law firms challenging the minimalist ingredients declarations of fellow bar brand That’s It.**.. Read
• Halo Top routinely under-fills its pints, alleges lawsuit, ‘dramatically so, at times…’: A month after being hit with a lawsuit alleging it made false and misleading representations about its light ice cream, Halo Top has been targeted again, this time with a proposed class action alleging it routinely under-fills its pints, “and has been doing this for years.”.. Read
• ‘No reliable scientific evidence’ supports Trader Joe’s alkaline water claims, alleges lawsuit: “There is no greater benefit to ingesting Trader Joe’s alkaline water than ingesting an equivalent bottled water or tap water,” argues a lawsuit alleging Trader Joe’s is duping shoppers into paying over the odds for the water, although legal experts predict that proving Trader Joe’s is making false implied health benefit claims will be “close to impossible.”.. Read
• Plant-based ‘milk’ row heats up as FDA commissioner says ‘public health concerns’ inform the agency’s renewed interest in dairy standards of identity: The war of words over labeling conventions for plant-based ‘milk’ intensified this week as FDA commissioner Dr Scott Gottlieb indicated that a “a new compliance policy” may be on the cards as the agency hosted a public meeting on its nutrition innovation strategy… Read
• Do consumers expect kombucha to contain live organisms? Court gives green light to lawsuit: Do consumers expect products labeled as ‘kombucha’ to contain live organisms, even if they don’t make any claims to this effect? Maybe, according to a court filing in a case that could have broader ramifications for the burgeoning category going forward, say attorneys… Read
• How much sugar do consumers expect in a ‘lightly sweetened’ cereal? Judge certifies classes in Kellogg added sugar case:  If up to 40% of the calories in breakfast cereals are from added sugar, and brands describe them as ‘lightly sweetened,’ are they misleading shoppers? Perhaps, says a federal judge who has just certified three classes of consumers in a false advertising lawsuit vs Kellogg, which is now heading into mediation… Read
• Tofurky CEO: It’s not the role of lawmakers to choose winners or losers in any given industry: As long as protein products are safe and shoppers are not being misled, it’s not the role of lawmakers to write new labeling laws favoring one production method over another, says the CEO of plant-based meat brand Tofurky, which is challenging a Missouri law* limiting the term ‘meat’ to slaughtered livestock or poultry… Read
• Clif Bar fires back at ‘absurd’ lawsuit: Consumers expect energy bars to contain sugar: Clif Bar has hit back at allegations made in a recent lawsuit* that it is duping consumers by presenting bars that are “loaded with sugar” as wholesome and nutritious, and urged the judge to toss the “absurd” and “implausible” case… Read

And here’s a more recent one from CBS News:

• LaCroix ingredients: Lawsuit alleges “all natural” claim is false: LaCroix sparkling water is facing a lawsuit alleging its claims of “all natural” and “100 percent natural” are misleading because…”Testing reveals that LaCroix contains a number of artificial ingredients, including linalool, which is used in cockroach insecticide.”

And here’s one more from CSPI (an October 24 addition):

• CSPI sues Jamba Juice: its juices, CSPI charges, are made from cheap concentrates as well as fresh fruit.

Addition, December 11

• Article about the five most active lawsuits

Remember “pink slime” the pejorative name for what BPI (Beef Products International) much prefers to call “lean, finely textured beef (LFTB),” so much so that it is suing ABC News under South Dakota’s “disparagement of agriculture” or food libel law.

This is not a joke.  BPI is suing for $1.9 billion in damages and this could go to $5.7 billion under South Dakota’s Food Product Disparagement Act.

The New York Times recounts the history of pink slime and reminds us that Michael Moss won a won a Pulitzer Prize for an article in which he mentions it in 2010.

I am riveted by Dan Flynn’s account of the trial in Food Safety News.

May 30:  The trial opens, with ironic timing.

But the BPI vs. ABC lawsuit is going forward just as demand is also coming back for LFTB, two years after depiction of the product in the media as “pink slime” put consumer pressure on retailers and restaurants to pull the product.Now, however, many of those same restaurants and retailers fear losing their customers for beef patties because they cost too much. LFTB, produced by both BPI and Cargill, is in demand to keep hamburger prices down.

June 5:  The jury trial begins.

At issue is whether the the network and its reporter violated South Dakota’s Agriculture Food Product Disparagement Act. If it did, any award won at trial  could be tripled under the Act — to as much as $5.7 billion in this case. The jury will have to decide if the network and its reporter defamed the product known within the meat industry as lean finely textured beef by repeatedly referring to it as “pink slime” in numerous reports beginning in March 7, 2012.

June 8:  BPI’s chief witness testifies.  She is professor Mindy Brashears, director of the International Center for Food Industry Excellence at Texas Tech.

She told the jury that BPI’s lean finely textured beef (LFTB) is meat, is beef, is nutritious and is entirely safe to eat…In the past four years, Brashears said, she not only examined everything she could find about BPI, but also conducted her own studies. Her time on the project totaled 1,250 hours and BPI paid her a private consulting rate of $250 an hour for a total of about $335,000.

June 9:  ABC’s lawyer,  Dane Butswinkas, starts his cross-examination

Butswinkas did get the professor to admit BPI was suspended from the National School Lunch Program on multiple occasions in 2007 and 2008. Brashears said those suspensions were essentially voluntary actions by BPI taken after pathogens were discovered in its product by the lab working for the lunch program. She said the action was consistent with BPI’s food safety plan.

I have a long-standing interest in this case, dating back to 2009 when I first started writing about it.

• December 30, 2009 The latest recall: mechanically tenderized beef
• March 30, 2012  I’ve been lobbied! Intense efforts to save pink slime aimed at governors, USDA officials, and me
• April 1, 2012 The dilemma of pink slime: cost or culture?
• April 2 2012  “Pink Slime:” Some questions about what’s really at stake
• April 4, 2012 Oops. Apologies to Mike Osterholm
• April 11, 2012  The legacy of LFTB (a.k.a “pink slime”): power politics in action
• September 14, 2012  Maker of “pink slime” sues everyone who calls it that
• December 18, 2013  American Meat Institute defines Fine, Lightly Textured Beef (a.k.a. “pink slime”)

I will continue to follow this trial with great interest.  Most lawyers I know think that food libel laws will not hold up in court.  Let’s see what this jury says.

The Center for Science in the Public Interest sent out a press release yesterday to announce a lawsuit filed on behalf of the nonprofit Praxis Project.

The complaint says Coca-Cola and its trade association, the American Beverage Association (ABA), mislead the public when they trash the science linking sugary drinks to obesity, type 2 diabetes, and the like.

It cites the August 2015 account in the New York Times of Coca-Cola’s funding of the Global Energy Balance Network, which aimed to shift attention from poor diets as a cause of obesity to lack of physical exercise.  Coca-Cola spent $120 million on research from 2010 to 2015 that could cast doubt on evidence linking health risks to sugary drinks.

It also cites quotations from officials of Coca-Cola and the ABA and researchers they fund “making false and deceptive statements about sugar-sweetened drinks.”  For example:

• Coca-Cola’s senior vice president, Katie Bayne, claims that “[t]here is no scientific evidence that connects sugary beverages to obesity.
• “Simply put, it is wrong to say beverages cause disease,” the ABA stated in another release.
• One of the scientists funded by Coca-Cola, Dr. Steven Blair, stated that “there is really virtually no compelling evidence” that sugar drinks are linked to the obesity epidemic.

The complaint also charges that Coca-Cola paid dietitians to promote sugary drinks; it quotes one dietitian who suggested that an eight-ounce soda could be a healthy snack, like “packs of almonds.”

It will be interesting to see how this lawsuit fares.  Stay tuned.