LAWS, REGULATIONS AND STANDARDS
Lawmakers introduce bill to ban commercial squid farming
A bipartisan group of U.S. senators has introduced legislation that would ban commercial octopus farming in the United States and prohibit the import of farmed octopus. The Opposing the Cultivation and Trade of Octopus Produced through Unethical Strategies (OCTOPUS) Act, sponsored by Senators Sheldon Whitehouse (D-I.) and Lisa Murkowski (R-Alaska), would ban commercial octopus farming. It would also impose fines for importing commercially farmed octopus or products containing octopus. It would also require importers to certify that they are not importing farmed octopus. It would also require the National Oceanic Atmospheric Administration to collect data on octopus fishing practices in trade programs under its jurisdiction.
USDA announces new containment policy Salmonella in raw poultry products
The Food Safety and Inspection Service (FSIS) of the United States Department of Agriculture (USDA) has proposed a rule and regulation to reduce Salmonella Contamination and diseases associated with raw poultry products. The proposed rule would establish standards for finished products to prevent raw chicken carcasses, chicken parts, ground chicken meat and ground turkey products that contain any type of Salmonella at or above 10 colony forming units and any detectable value of at least one of the Salmonella exclude serotypes of public health importance from trade. The USDA will accept comments on the proposed rule within 60 days of publication in the Federal Register.
Litigation
Ohio court: Consumers could reasonably have expected bones in boneless wings
In a 4-3 decision, the Ohio Supreme Court ruled that a consumer could reasonably expect that boneless chicken wings contained bones and should be wary of them. Berkheimer v. REKM, LLCNo. 24-2787 (Ohio, entered July 25, 2024). Plaintiff sued Wings On Brookwood restaurant and suppliers Gordon Food Service (GFS) and Wayne Farms, LLC after he ordered boneless wings and accidentally swallowed a chicken bone, causing a tear in his esophagus that resulted in a bacterial infection and ongoing medical problems. The trial court granted defendants’ motions for summary judgment, holding that common sense dictates that the presence of bones in meat dishes, even when advertised as “boneless,” is such a natural occurrence that consumers should reasonably expect and beware of it.
The ruling was upheld by an appeals court and again by the Supreme Court, which ruled that Ohio courts should apply a hybrid of the “reasonable expectation” and “strange-natural” tests. The dissenting opinion called the majority’s position “waffle” and noted, “Nevertheless, one must give the majority its due; it recognizes that boneless wings are not true wings and that chicken fingers are not true fingers.”
Consumer claims: Meati Foods products contain mold
A California woman has filed a lawsuit accusing Emergy Inc.’s Meati Foods of falsely labeling its products as made from mushroom roots when in fact they are made from mold. Caldeira v. Emergy Inc.No. 24-01775 (ED Cal., filed June 24, 2024). The plaintiff alleges that the company’s products are advertised as “Made from Mushroom Root” and “95% Mushroom Root Protein,” while the primary ingredient Neurospora crassaa red mold that often grows on bread. “This deception is particularly dangerous because it is known that consuming high levels of mold can cause severe allergic reactions in consumers and possibly lead to death,” the plaintiff claims.
Boar’s Head faces legal action over listeria recall
A New York consumer has filed a class action lawsuit alleging that Boar’s Head Provisions Co. Inc. failed to inform consumers that several of its products Listeria monocytogenes. Torres v. Boar’s Head Provisions Co. Inc.No. 24-5405 (EDNY, filed August 1, 2024). The company issued a recall of its products on July 25, 2024. The plaintiff alleges that the recall, which gave buyers the opportunity to receive a refund, was not a sufficient remedy for consumers.
Consumers claim Eggland’s Best’s “cage-free” label is misleading
A consumer class action lawsuit is planned against Eggland’s Best over the living conditions of the animals that produce “cage-free” eggs. Janecyk v. Eggland’s Best, Inc.No. 24-6222 (N.D. Ill., filed July 23, 2024). Plaintiffs allege that marketing claims portraying Eggland’s Best’s chickens as “free-roaming in a pleasant, natural environment” are false. Instead, they claim that the chickens, which produce free-range eggs, live confined indoors with hundreds of thousands of tightly packed chickens. “These chickens have nowhere to ‘roam’ and their living conditions are neither ‘natural’ nor ‘pleasant,'” they argue. “Quite the opposite. Living in cramped, artificial conditions is very stressful for chickens and increases their risk of illness, injury and death.”
US Olympic Committee accuses Prime Hydration of violations
The U.S. Olympic and Paralympic Committee alleges that Prime Hydration LLC infringed its trademark rights in violation of the Ted Stevens Olympic and Amateur Sports Act. US Olympic & Paralympic Comm. v. Prime Hydration LLCNo. 24-2001 (D. Colo., filed July 19, 2023). Prime released a drink that described Kevin Durant as a “true Olympian” and “three-time Olympic gold medalist” on its packaging, and also used phrases such as “Kevin Durant Olympic Prime Drink,” “Olympic Achievements,” and “Kevin Durant’s Olympic Legacy” on social media. The Olympic Committee claims it contacted Prime to demand that the copyright infringement cease, but Prime continued to ship the product after being notified of the alleged copyright infringement.
Consumer complaint: Cocoa balls contain dangerous amounts of lead
A California man has filed a class action lawsuit accusing General Mills of failing to disclose that its Cocoa Puffs cereal contains “a significant and dangerous amount of lead.” Tobin v. Gen. Mills Sales Inc.No. 24-4397 (ND Cal., filed July 19, 2024). The plaintiff claims that independent testing showed that an average-sized bowl of the cereal exceeded the maximum allowable daily lead level under California Prop. 65 and argues that General Mills knew or should have known that the products contained lead.
Second Circuit Court revives lawsuit over wheat cracker labeling
The Second District Court of Appeals has reinstated a lawsuit alleging that the product labeling of Back to Nature Foods Co.’s Stoneground Wheat Crackers is deceptive and misleading, finding that the plaintiff made sufficient factual allegations. Venticinque v. Back to Nature Foods Co., LLCNo. 23-1236 (2d Cir., entered July 12, 2024). The plaintiff alleged that the labeling of the products misleads consumers into believing that the crackers are made predominantly with organic whole wheat flour, when in fact the primary ingredient is unbleached enriched organic wheat flour.
The case was dismissed by a lower court after it concluded that the plaintiff had not adequately shown that a reasonable consumer could be misled by the labeling. The Second Circuit Court of Appeals disagreed, comparing the case in question to an earlier case involving similar claims in which the court found that “a reasonable consumer cannot be expected to consult the Nutrition Facts panel on the side of the package to correct misleading information that appears in large, bold letters on the front of the package.”
Consumers claim that Enfagrow drinks for young children contain illegal health claims
Mead Johnson & Co. and Reckitt Benckiser LLC are accused of mislabeling Enfagrow products by making prohibited nutrient claims on the product packaging. Garland v. Mead Johnson & Co.No. 24-1168 (S.D. Cal., filed July 5, 2024). Plaintiffs allege that the Enfagrow Premium and Enfagrow NeuroPro Toddler Nutritional Drink products are intended for children under two years of age, but federal regulations prohibit nutrient content claims for children in that age group. The claims in question include “Immune Health Dual Prebiotics and Vitamins,” “Supports Brain Development Omega-3 DHA and Iron,” and “22 Nutrients to Support Growth.” Plaintiffs argue that “by repeating parents’ nutritional concerns and inserting claims and graphics related to brain development and immune health, Defendants trick and mislead consumers into purchasing their products out of fear that a diet without the products will be nutritionally inadequate for their toddlers.”
History of Flamin’ Hot Cheetos disputed in legal dispute
Richard Montañez has filed a lawsuit accusing PepsiCo Inc. and Frito-Lay Inc. of conducting a “smear campaign” by claiming he was not the inventor of Flamin’ Hot Cheetos. Montañez v. PepsiCo Inc.No. CIVRS2400356 (Cal. Super. Ct., San Bernadino Cty., Rancho Cucamonga Dist., filed July 18, 2024). Montañez claims the companies were “more than happy to use Mr. Montañez’s story to increase sales and popularity of the product” by sending him on a speaking tour across the United States where he “delivered speeches that PepsiCo/Frito-Lay reviewed and approved.” In 2021, the companies “made an inexplicable about-face,” Montañez claims, by sending the author of a Los Angeles Times An article titled “The Man Who Didn’t Invent Flamin’ Hot Cheetos” states that company records show no evidence that Montañez was “involved in any capacity in the test market for Flamin’ Hot” and that Montañez’s version of events is an “urban legend.”
After the article, Montañez said, he will no longer be hired to speak as frequently — down from about 35 per year to four in 2024. “For decades, Mr. Montañez lived the American dream. Now he is living the American nightmare. After years of praising Mr. Montañez as a sales engine, Defendants’ recent about-face — which can only be explained by a combination of regime change, spite and deep-seated racism — exemplifies the worst part of American history and demonstrates an attitude that says Latinos without higher education cannot be responsible for the success of a billion-dollar brand.”
Montañez alleges violation of the Fair Employment and Housing Act, fraud, defamation, intentional interference with future economic benefits, unjust enrichment, and a violation of California’s Unfair Competition Law.
