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Personal Injury Law

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 Traceability Story: Request for Comments

Posted on May 14, 2010
Jim Prevor has an intriguing story in one of his latest Perishable Pundits, updated here and here, that frankly has me wondering. According to Jim, Freshway Foods discovered E.Coil 0145 in some romaine and, using tracking numbers, was able to trace it to a specific lot supplied by a grower in Yuma, Arizona...

Dr. Temple Grandin in Seattle, June 18 for Food Alliance Event

Posted on May 13, 2010
Register now for the Friday, June 18 Food Alliance event at the Museum of History and Industry (MOHAI) in Seattle with Dr. Temple Grandin. This is a unique opportunity to meet Dr. Grandin and leaders in sustainable food and animal welfare...

Will the New Health Care Law Improve Chilren's Nutrition?

Posted on May 13, 2010
By Guest Blogger David Pacheco This post also appears on the Essential Nutrition Law Blog It is hard to deny that Americans are putting on the pounds and that the problem is often starting with poor nutrition during childhood. The problem has not gone unnoticed and a number of organizations, including the federal government, are trying to trim down the epidemic...

Energy Drinks and Nutrition Bars too Related to Avoid Consumer Confusion

Posted on May 12, 2010
By Guest Blogger Michael Mangelson This post also appears on the Essential Nutrition Law Blog The Trademark Trial and Appeal Board (TTAB) recently issued a decision that highlights the importance of not assuming that goods that fall in different international trademark classes are unrelated in a likelihood of confusion analysis...

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Court Cuts Back Claims In Great Pomegranate Dispute

Posted on May 11, 2010
By Guest Blogger Jay Eckhardt In a dispute over product labeling and marketing, the Coca-Cola Company avoids liability as a result of its careful compliance with FDA rules. (Also, see Rick's post from last week, regarding Coca-Cola's victory in a dispute over its original formula label found on Coke® Classic...

"Always Coca-Cola"? Who Knows?

Posted on May 07, 2010
On April 27, the U.S. District Court for the Southern District of Illinois dismissed the case of Kremers v. Coca-Cola Company. The case involved another of these ubiquitous claims whre someone is suing saying they were fooled by labeling on a product...

DOJ Pursues Tomato Processors - One Executive Pushes Back

Posted on May 06, 2010
By Guest Blogger Jay Eckhardt On April 29, the Department of Justice (DOJ) announced that it had obtained a criminal indictment against the former CEO of SK Foods, Scott Salyer, for his participation in a conspiracy to fix prices and rig bids in the market for tomato paste...

Introducing the Essential Nutrition Law Blog

Posted on April 30, 2010
Our colleague Mike Mangelson and a team of Stoel Rives lawyers spanning numerous practice specialties have recently launched the Essential Nutrition Law Blog. Stoel Rives attorneys work closely with companies engaged in the research, development, production, and sale of dietary and nutritional supplements, energy and nutrition beverages, herbal supplements and functional foods, and the Essential Nutrition Law Blog will be an excellent resource for interested parties to look to for the most recent legal developments in the field...

Froot Loops Litigation: An Endless Loop for Kellogg's?

Posted on April 29, 2010
Just over forty years ago, Crosby, Stills, Nash & Young came out with their Déja Vu album. Attorneys at Kellogg USA are undoubtedly thinking, 'We have all been here before.' Froot Loops pre-dated Crosby, Stills, Nash & Young...

FDA Seeks Public Comment Regarding FOP Labeling

Posted on April 28, 2010
In an April 28 release, the Food and Drug Administration (the 'FDA') asked for comments and information from the public and other interested parties about front-of-pack ('FOP') nutrition labeling and shelf tags in retail stores. The FOP is the part of the package label that is most likely to be examined under customary conditions of display for retail sale...

Preserving the Brand and Avoiding Media Backlash During a Crisis

Posted on April 26, 2010
I'll be moderating and speaking on a panel at the upcoming ACI's Advanced Summit on Food Safety Regulatory Compliance in Chicago, June 28-29. Scott Rickman from Del Monte, public relations professionals and I will be presenting on "Effectively Responding to Negative Media Coverage: How to Avoid the Backlash" (If you plan to attend, register soon and contact me for a conference discount)...

CDC Sees "Sustained Decline" for 2009 in Reported Rates of Food-Borne Illness, but Is This Real?

Posted on April 15, 2010
A somewhat surprising report out this week by the CDC reports for 2009 "sustained declines in the reported incidence of infections caused by Campylobacter, Listeria, Salmonella, Shiga toxin-producing Escherichia coli (STEC) O157, Shigella, and Yersinia...

District Court to CSPI: No Standing Any Time

Posted on April 13, 2010
Standing is one of those basic concepts they teach everyone in law school. Courts, law students are told, are for the resolution of disputes between parties with a real stake in the outcome, not for the delivery of advisory opinions. Then, it being law school after all, you are taught a number of ways in which you can legally obtain standing and essentially get an advisory opinion...

Defective Cans of Fruit Deemed "Usable" by Insurer ... but for What?

Posted on April 12, 2010
Can products packaged defectively for consumer sale really be usable? According to a recent case adjudicating commercial general liabilty ("CGL") and commercial umbrella insurance policies, products packaged in defective cans are not necessarily unusable...

Denny's Sodium Claims in Illinois Tossed on FRCP 12(b)(6) Motion

Posted on April 12, 2010
As anticipated, the "sodium" claims against Denny's asserted in federal district court in Illinois have been dismissed on a Federal Rule of Civil Procedure (FRCP) 12(b)(6) motion. A copy of the court's order is here. As discussed previously in this blog, the Illinois action alleges claims of consumer fraud, breach of implied warranty of merchantability, unjust enrichment, accounting and breach of contract implied in fact...

Ninth Circuit Approves California Ban on Slaughtering Nonambulatory Animals Against Preemption Challenge

Posted on March 31, 2010
Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals may be the best-known lower court judge in the United States. He has wide-ranging tastes and accomplishments. Nearly every lawyer has a favorite Judge Kozinski quote, such as the opening line in Mattel, Inc...

The Food Labeling Provisions of the Health Care Bill: Preliminary Thoughts

Posted on March 25, 2010
You've heard the phrase "buried in the bill," of course. Section 4205 of the "Patient Protection and Affordable Care Act," the health care reform bill President Obama signed on March 23, 2010, is contained on pages 1206-1214 of a 2407 page bill...

PepsiCo Developing "Designer Salt" in Effort to Reduce Sodium Content

Posted on March 22, 2010
Sodium content issues continue to be a hotbed of activity in the food industry. Hot on the heels of the New York City-led National Salt Reduction Initiative (which we blogged about here), an article in the Wall Street Journal gives us an indication on how one major brand is responding to the pressure to reduce the sodium content in its products...

The Great HVP Recall of 2010: A Review of Lessons Already Taught

Posted on March 15, 2010
As Ken noted last week, there has been a widespread recall of products containing hydrolized vegetable protein (HVP), a flavor enhancer, after salmonella Tennessee was discovered in product manufactured by Basic Food Flavors of North Las Vegas, Nevada...

GAO Report Urges FDA to Improve GRAS Oversight

Posted on March 11, 2010
As we have discussed in recent postings (here and here), issues regarding the certification of food ingredients as generally recognized as safe ('GRAS') by the Food and Drug Administration (the 'FDA') have been a hot topic in industry circles. Now, the Government Accountability Office (the 'GAO') has released a report encouraging the FDA to improve its oversight of GRAS food ingredients...

Difficult Week for the Food Industry (Good Week for the Plaintiffs' Bar): HVP Salmonella and FDA Warning Letters

Posted on March 08, 2010
The week of March 1 saw a double whammy hit food manufacturers. I. Open Letter to Industry on Marketing Claims First, on March 3, FDA sent warning letters to 16 food manufacturers concerning their labeling practices. FDA also issued an Open Letter to Industry warning against certain practices...

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

Posted on March 04, 2010
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...

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

Posted on March 01, 2010
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...

Takeaways from 2010 GMA Food Litigation Conference

Posted on February 27, 2010
Stoel Rives was a sponsor of this year'sGMA food litigation conference in Austin from February 22 to 25. The slide deck from Ken Odza's presentation on consumer fraud class claims can be viewed by clicking on this image. Some of the takeaways from my presentation and those by others at the conference include: Assure Marketing Is in Sync with R&D (to Avoid Exposure from Consumer Fraud Class Claims) (Ken Odza, Paul Benson, Richard Fama) The point was underscored in several presentations that exposure on consumer fraud class claims often comes from unsupported marketing claims (health claims in particular)...

One Lesson From Fitzpatrick v. General Mills: Class Cert. Tough To Oppose In Consumer Fraud Cases When Plaintiffs Don't Have To Demonstrate Individualized Reliance/Causation

Posted on February 17, 2010
Last month Judge Paul Huck of the U.S. District Court for the Southern District of Florida granted in part and denied in part class certification on claims brought in Fitzpatrick v. General Mills. Judge Huck granted class certification on claims asserted under Florida's Deceptive and Unfair Trade Practices Act (FDUTPA) but denied class certification for claims of breach of express warranty...

Florida Yogurt Class Claims Certified on Unfair Trade Practices but Not on Express Warranty Claims: Actual Reliance Required for the Latter but Not the Former

Bagged Salads: Consumers Union Weighs In, Perishable Pundit Replies

Posted on February 12, 2010
The motto of Consumers Union, the publisher of Consumer Reports, is "working for a fair, just and safe marketplace for all." The motto of Jim Prevor's Perishable Pundit is "where the subject may be perishable but the insight isn't...

Consumer Fraud Class Claims Presentation at GMA

Posted on February 11, 2010
In just a couple of weeks (Feb. 23-25), I'll be in Austin for the GMA Food Claims & Litigation Conference. Let me know if you plan to attend. I'll be presenting with Scott Rickman from Del Monte Foods on consumer fraud class claims arising from food product labeling and marketing...

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

Posted on February 04, 2010
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...

Media Headlines and Food Labels Each Might Be Misleading (Film at 11)

Posted on January 29, 2010
A recent headline in the Huffington Post breathlessly importuned: "Restaurant Food Has Up to 200% More Calories Than Advertised." If you only read the headline, you might think this was some important information that might change your eating habits...

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