Personal Injury Law

Tomorrow's (11/17) Webinar on Mitigating the Legal Risks of Sustainable Food Products

Posted on November 16, 2009
Please join me, Steve Marinkovich from Propel Insurance, my colleague at Stoel Rives, Anne Glazer, and Peter Truitt, CEO of Truitt Bros., Inc. tomorrow, November 17, at 9 am PST, noon EST, (live Twitter feed at #sustainlaw) for the last webinar in our 3-part series on Bringing Sustainable Food Products To Market...

Oil and Water Meet Caffeine and Alcohol: FDA to Look into Safety of Caffeinated Alcoholic Beverages

Posted on November 16, 2009
By Guest Bloggers Tyler Anderson and Stephanie Meier On November 13, the FDA notified nearly 30 manufacturers of caffeinated alcoholic beverages that the agency intends to look into the safety and legality of their products. As the FDA explained in a news release announcing this action, under the Federal Food, Drug, and Cosmetic Act any substance intentionally added to food, in this case caffeine in alcoholic beverages, is deemed unsafe and is unlawful unless its specific use has been approved by an FDA regulation, the substance is subject to a prior sanction, or the substance is Generally Recognized as Safe (GRAS)...

Delio v. McDonald's Corp.: The Connecticut Grilled Chicken Case

Posted on November 12, 2009
It took our intrepid docket clerk a few weeks of digging, and finally contacting the plaintiffs' counsel directly, to get a copy of the complaint in Delio v. McDonald's Corp., a case filed in Superior Court in Hartford County, Connecticut on October 6...

Hurdles Faced By Plaintiffs In Class Action Lawsuit for Sale and Marketing of Cold and Flu Medications Containing Vitamin C

Posted on November 11, 2009
By Guest Blogger Tyler Anderson On November 2, we blogged about the FDA warning letter issued to Procter and Gamble for its unlawful marketing of Vicks cold and flu medications containing Vitamin C. On November 4, 2009, a putative class action lawsuit was filed against Procter and Gamble in the U...

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Take-Aways from November 3 Webinar: Making Good Marketing Claims: Product Labeling Pitfalls, Third-Party Certification and "Green Washing"

Posted on November 05, 2009
Tuesday, November 3, we held our second webinar in a three-part series on bringing sustainable food products to market. Thanks again to our presenters and attendees. The recorded webcast was archived and is accessible at this link. Click here to access a PDF copy of the presentation slides...

From Onions to Chicken Soup: The Wall Street Journal Weighs in On Home Flu Remedies

Posted on November 04, 2009
Melinda Beck has a terrific article in today's Wall Street Journal about home remedies for the H1N1 virus and (as we have previously blogged) the FDA's efforts to reign in those making unsupported marketing claims for their remedies.  One remedy sweeping the blogosphere like wildfire is the use of onions to soak up flu bugs...

Marketing Missive: FDA Issues Warning Letter to Procter and Gamble for Unlawfully Marketing Cold and Flu Medications Containing Vitamin C

Posted on November 02, 2009
By Guest Blogger Tyler Anderson On October 29, 2009, the FDA issued a warning letter to Procter and Gamble notifying the company that its 'Vicks DayQuil Plus Vitamin C' and 'Vicks NyQuil Plus Vitamin C' are illegally marketed combinations of drug ingredients and a dietary ingredient...

Some Take-Aways from ACI's 3rd National Forum on Food-Borne Illness Litigation

Posted on November 02, 2009
American Conference Institute (ACI) recently held its latest conference on food-borne illness litigation. The conference has been a fairly intimate gathering of the nation's lawyers, insurers and experts involved with food-borne illness litigation. This year, I had the privilege of moderating an in-house counsel 'think tank...

Learn About Who Is Setting Sustainability Standards and How to Make Good Sustainability Claims: Register for the 11/3 Sustainable Foods Webinar

Posted on October 29, 2009
If you haven't already, register here for the second in a three-part webinar series on environmentally friendly sustainable food products, to be held at 9 am PT, Tuesday, November 3. This installment of the series will focus on sustainability standards, third-party certification and avoidance of 'green-washing...

The Table Is Set For Class Action Litigation Over the Use of Smart Choices Labeling

Posted on October 23, 2009
By Guest Blogger Troy Hutchinson In response to recent consumer complaints and state attorney general investigations that the use of the Smart Choices label is misleading and deceptive, food companies now face the threat of consumer class action litigation under state fraud and deceptive practices statutes...

Take-Aways from October 20 Webinar: Defining Sustainability and Getting Started

Posted on October 21, 2009
This week kicked off the three-part webinar series on bringing sustainable food products to market. Thanks to our presenters and attendees. The recorded webcast was archived and is accessible at this link or by clicking the image at the bottom of this blog entry...

Preemption v. Plausibility: Will There Be More or Fewer Successful Consumer Fraud Suits?

Posted on October 20, 2009
Products Liability Law360 ran a piece this week entitled 'Suits Over Deceptive Food Marketing Likely To Increase' (unfortunately, this is a subscription-only site) authored by Liz McKenzie. The article discusses rightly how increased FDA enforcement action may lead plaintiffs attorneys to file 'piggy-back' putative class actions...

FDA's Searchable Widget for Fraudulent H1N1 (Swine) Flu Products

Posted on October 15, 2009
Ken has previously blogged about liability issues relating to H1N1 flu, also known as swine flu.  Today, the FDA has issued a widget to allow employers, consumers and others to browse and search fraudulent H1N1 influenza products and report suspected fraud...

Jim Prevor Deconstructs CSPI's List of "Ten Riskiest Foods"

Posted on October 09, 2009
The Center for Science in the Public Interest has released its list of "Ten Riskiest Foods Regulated by the FDA."  The list has gotten a lot of publicity, particularly because some unexpected foods like potatoes made the list.  Our friend Jim Prevor, the Perishable Pundit, has written a Special Edition of his newsletter that pretty much says everything about the list that we would say, so I'm just linking to his article...

Comment On Recent New York Times E. Coli and Beef Article: How Retailers Can Protect Themselves

Posted on October 06, 2009
Co-Authored By Guest Blogger Scott Hansen According to its website, last Sunday's New York Times article on E. coli and beef is among the most widely read pieces published by the newspaper this week. The article tells the story of a 22-year-old Minnesota dance instructor who was left paralyzed after being infected with a strain of E...

Environmentally Sustainable Foods: Dispelling Fear and Understanding That Sustainability Must Be Good for Business

Posted on October 05, 2009
Stoel Rives is proud to sponsor an upcoming webinar series on legal and business aspects of bringing sustainable food products to market. Industry representatives will talk among other things about what sustainable food products are, help dispel the fears of traditional food companies, discuss strategies for minimizing business and litigation risks, and underscore the importance of sustainable foods as a profit-making enterprise...

Lecture at the University of Minnesota

Posted on September 29, 2009
Off to Minneapolis this week for a lecture at the University of Minnesota's Department of Food Science. I'll be talking to professor Francisco Diez's Food: Safety, Risks and Technology class. My lecture is titled 'Consumers vs. Food Companies: Intersection of the Court System and Food Science...

PCA Investigation: Anatomy of A Recall

Posted on September 21, 2009
FDA has a short video "anatomy of a recall" about the investigation of the Salmonella outbreak and recalls associated with Peanut Corporation of America (PCA). Anyone interested in learning how the federal government  (with the help of Minnesota's "Team Diarrhea") goes about a food borne illness investigation and recall should take a look...

Hungry for Change: ABA Journal on Food Safety Reform and Its History

Posted on September 21, 2009
Kristin Choo has written a piece for the ABA Journal tracking the history of food safety regulation, recent outbreaks and current legislation pending in Congress. I am grateful to be mentioned in the piece. The article can be found at this link.  Ms...

Macaroni Grill Changes Its Menu for the Right Reasons

Posted on September 18, 2009
While Denny's appears to be subject to a growing trend of people suing it to change its menu, Romano's Macaroni Grill is lowering the calories in its menu for another reason:  to stem losses in sales.  According to an article in the Wall Street Journal, Macaroni Grill is increasing sales while at the same time lowering food costs, prep time and the calories in its menu items...

Sodium Putative Class Action Suits to Become Epidemic?

Posted on September 15, 2009
Following the putative class suit filed last month in New Jersey by the Center for Science in the Public Interest (CSPI) against Denny's, a similar suit was filed in Illinois (apparently CSPI is not directly involved in this action). The Illinois complaint can be found here...

Litigation and Insurance Coverage Risks from Swine Flu (H1N1)

Posted on September 04, 2009
For food companies (and other businesses), a dangerous and deadly flu pandemic (e.g., H1N1) can be a business disaster. Adding insult to injury is personal injury litigation and the accompanying insurance coverage nightmares that follow. What Are the Personal Injury Litigation Risks? For restaurants, airlines, cruiselines, supermarkets, hospitals, schools, and other institutions, risk comes from exposure if customers can link their illness with employee or staff illnesses...

Before the Outbreak, Preapprove Defense Counsel with Insurer

Posted on August 31, 2009
When a food-borne illness outbreak happens, few food companies (especially those whose brand is at stake) want an unfamiliar defense lawyer who has little knowledge about food-borne illness responding to claims asserted against them. Unless a food company maintains a high, self-insured retention or has the lawyer of its choosing preselected, its insurer might appoint on the food company's behalf low-cost defense counsel ill-equipped to respond to the claims and protect the brand...

Ninth Circuit Decision Casts Doubt on Merchantability Claim in CSPI Suit Against Denny's

Posted on August 28, 2009
Along, I am sure, with many of you, I was intrigued at Ken's recent post on the case of DeBenedetto v. Denny's Corporation, filed recently in Middlesex County, New Jersey by the Center for Science in the Public Interest.  Most interesting to me, of course, was the claim that Denny's food violated the warranty of merchantability contained in contracts for the sale of goods under Article 2 of the Uniform Commercial Code...

Challenges of a Lanham Act Injunction in Food Cases: Lessons from an Advertising Battle Between Two Major Consumer Products Companies

Posted on August 20, 2009
The recent decision in Stokely-Van Camp, Inc. v. Coca-Cola Co. (i.e., Gatorade vs. Powerade) illustrates the hurdles a company has to overcome to convince a court to stop a competitor from using arguably false advertising. Stokely-Van Camp, Inc. ('SVM') was challenging advertising that compared Powerade ION4 to Gatorade Thirst Quencher...

Facts Alleged in CSPI Sodium Suit Incongruent with Claims Asserted

Posted on August 18, 2009
Thought to be the first putative class action against a restaurant chain related to disclosure of sodium content on menus, Center for Science in the Public Interest (CSPI) has filed what appears to be a test case against Denny's. Best guess is the case will fail on its merits (though for CSPI, success in litigation may not be the point)...

Snapple Decision - FDA's Policy Concerning Use of "Natural" Not Entitled to Preemptive Effect

Posted on August 14, 2009
High Fructose Corn Syrup Labeling: Opening the Floodgates For Consumer HFCS Claims? The Third Circuit ruled this week in Holk v. Snapple Beverage Corp., reversing the district court and reinstating the state law putative class claims for consumer fraud and breach of warranty for use of the term 'all natural' despite the inclusion of high fructose corn syrup (HFCS) (though the court noted that the manufacturer no longer uses HFCS in its products)...

FDA Draft Guidance on Tomatoes, Leafy Greens and Melons

Posted on August 12, 2009
On July 31, the FDA issued draft guidance on three categories of produce:  tomatoes, leafy greens and melons.  Comments on the drafts are due, according to Hyman, Phelps & McNamara P.C.'s FDA Law Blog, by November 3 at www.regulations...

DOJ and DOA Announce Workshops to Evaluate Agricultural Markets and Competition

Posted on August 10, 2009
By Guest Blogger Joel Dahlgren Last week the Justice Department and U.S. Department of Agriculture announced that the two federal agencies will hold joint public workshops to explore competition issues affecting agriculture in the 21st century, including the appropriate role of the federal government in antitrust and regulatory enforcement...

Opening the Door to More Litigation Between Food Companies? See POM v. Ocean Spray Decision

Posted on August 05, 2009
False advertising claims under the Lanham Act and corresponding state law claims for food companies can be tough going. Many intersect issues regulated by the FDA under the Federal Food, Drug, and Cosmetic Act (FFDCA). No private right of enforcement of the FDA regulations exists...

Tool For Food Companies and Litigators - New Guidelines for Foodborne Disease Outbreak Response

Posted on August 03, 2009
Council to Improve Foodborne Outbreak Response ('CIFOR') has published new guidelines designed to help local, state and federal agencies to improve their response to outbreaks. I became aware of this (again) through Ricardo Carvajal, who was a reviewer for the guidelines, and his firm's FDA Law Blog...

After Second Try, House Passes Food Safety Enhancement Act of 2009 (HR 2749)

Posted on July 30, 2009
U.S. House of Representatives approved HR 2749 moments ago. This action followed some confusion yesterday where it was brought to the floor needing a 2/3 vote and failed. Here's a link to a report by the Rules Committee including the language of the bill as approved today by the House...

Monty Python and the Food Recalls

Posted on July 10, 2009
One of Monty Python's most imitated sketches was "The Four Yorkshiremen."  Even if you've never seen it, it will be instantly recognizable to you.  It's the one where four men sit around talking about how tough they had it as kids, compared to how kids have it today...

Future of Food Litigation and Obama's Food Safety Working Group

Posted on July 09, 2009
President Obama's Food Safety Working Group announced its Key Findings on July 7. Three groups of initiatives were announced: 1) Salmonella, 2) National Traceback and Response System, and 3) Improved Organization of Federal Food Safety Responsibilities...

ACI Announces 3rd National Forum on Food-Borne Illness Litigation

Posted on July 08, 2009
The American Conference Institute announced this week its latest food litigation conference. Here's the conference brochure. The conference will take place in Chicago on October 26-27 at the Sutton Place Hotel. Plaintiffs' lawyer Bill Marler and defense lawyer Al Maxwell are co-chairing the conference...

HFCS Labeling Case: Opening The Floodgates For New Consumer Claims?

Posted on July 07, 2009
The Third Circuit may be close to opening the floodgates of claims against food and beverage manufacturers who use high-fructose corn syrup ('HFCS') in products labeled 'all natural.' Shannon Duffy at the Legal Intelligencer reported recently on a 'lively hour-long' oral argument in the Third Circuit about reversing a District Court's dismissal of state consumer claims against Snapple for use of HFSC...

Another Recall From a Company That Does the Right Thing

Posted on July 03, 2009
The FDA announced a recall of fresh tuna steaks distributed to Shaw's, Star Market and Big Y grocery stores by North Coast Sea-Foods Corp. of Boston and New Bedford.  The alleged problem was increased levels of histamine that might cause scombroid poisoning...

Why Are Food-borne Organisms Associated with Beef?

Posted on July 02, 2009
 USDA's Be Food Safe Twitter Feed circulated its Fact Sheet titled 'Beef . . . from Farm to Table.' First published a few years ago, this might be of interest to businesses involved in the sale, marketing, labeling, and/or packaging of beef...

Captain Crunch Suit Dismissed: Court Finds No "Actual Fruit Referred to as Crunchberry"

Posted on July 01, 2009
Yes, someone has actually filed a putative class action on the basis that she was 'mislead by the packaging and marketing, which she argues convey the message that the Product contains real, nutritious fruit.' U.S. District Judge England in the Eastern District of California dismissed the complaint captioned as Sugawara v...

Avoid Unnecessary Labeling Claims - Ensure That Cooking Instructions Are Adequate

Posted on June 30, 2009
Bill Marler funded independent research at the University of Idaho to study the adequacy of cooking instructions found on the packaging on various retail brands of frozen ground beef patties. The research was published this month in Food Protection Trends...

Energy Drink Maker Sued Over Alleged Health Risks

Posted on June 29, 2009
The maker of Redline energy drinks has been sued in federal court in California.  The plaintiff, Zack Aaronson, is seeking class action status for his lawsuit against Vital Pharmaceuticals, Inc. (operating under the trademark VPX). The plaintiff claims that VPX failed to adequately warn consumers of potential side effects and health risks associated with consuming VPX's Redline energy products...

When A Food Borne Illness Insurance $0 Sublimit Does Not Mean $0 Of Coverage

Posted on June 29, 2009
Restaurant owners recently scored a victory against an insurer, who was looking to limit its exposure for lost sales from the fallout from a food-borne illness outbreak. Middlesex, New Jersey Superior Court Judge Lewis Paley ruled in favor of restaurant franchise owners suing for coverage under a Trade Name Restoration, Loss of Business Income and Incident Response Insurance for Food Borne Illness ('TNR') policy to compensate for lost sales from a well-publicized E...

Trademarking Green/Eco-Friendly Food - What You Need To Know

Posted on June 26, 2009
By Guest Blogger Jere Webb It is evident that virtually every business now is trying to position itself as being 'green'. For a discussion of restrictions on 'green advertising', particularly the FTC's green ad guidelines (the 'Green Guides'), and similar efforts at the state level, see 'Green Claims Advertising – What You Can Say and What You Can't'...

Participate in USDA Governance in Your County

Posted on June 24, 2009
The Stoel Rives Agribusiness Group has sent out an alert reminding farmers and ranchers of the USDA's program that allows you to participate at the county level in discusssions relating to agricultural decisions in your community.  The link to the website with materials needed to submit nominations (which opened on June 15) is here...

Sustainability and Consumer Confidence in Food Safety

Posted on June 24, 2009
For food sellers interested in promoting a 'sustainable' brand and inspiring food safety confidence in their consumers, meet Food Alliance. Food Alliance 'is a nonprofit organization that certifies farms, ranches and food handlers for sustainable agricultural and facility management practices...

Melamine in Pet Food and the Limits of the Law

Posted on June 23, 2009
Ken's blog post about taking the time to figure out what insurance limits are right for you resonated with me as I was reading about the plea agreement in the melamine pet food debacle.  This was the likely last act in a tawdry story of greed and fraud that led to the deaths of thousands of cats and dogs and placed nearly every pet owner in fear...

Food Safety Legislative Update

Posted on June 23, 2009
We wrote recently about the food safety legislation coming out of Henry Waxman's House Committee on Energy and Commerce. That legislation, H.R. 2749, has passed out of committee and been reported to the full House for a vote. When the vote will occur is anybody's guess...

Liability Limits: How Much Should Your Food Company Maintain?

Posted on June 23, 2009
Food business clients frequently want to ensure that they have sufficient liability limits in the event of an outbreak (they also want to make sure they have adequate coverage, but this is a separate discussion). Determining the amount of a business's limits depends on the business's possible exposures...

Improved Surveillance Will Lead to More Food-Borne Illness Claims

Posted on June 22, 2009
We've explained previously in this blog why increased surveillance by state and federal agencies will lead to detection of more outbreaks (and, therefore, more legal exposure). Others seem to agree. Law360 published a nice interview with Jim Neale at McGuire Woods, another lawyer experienced in the food liability arena ( a Law360 subscription is needed to access the full article)...

The Perils of Raw Cookie Dough

Posted on June 19, 2009
Nestlé is voluntarily recalling all its refrigerated and frozen chocolate chip cookie dough.  The FDA and CDC warn of the risk of contamination with E. coli O157:H7.  In its release, Nestle says the following:  Nestlé Toll House cookies made from refrigerated and frozen dough are perfectly safe for consumption when prepared according to the instructions on the label...

Nolan v. Ocean Spray Verdict: The PACA Angle

Posted on June 16, 2009
Jim Prevor, the author of the Perishable Pundit blog and a man who has probably forgotten more about the produce industry and its practices than many will learn in a lifetime, has been blogging constantly about the lawsuit brought by Theresa Nolan, her company The Nolan Network and her late husband Jim against Ocean Spray Cranberries, Inc...

More on Reducing the Risk of Failure - Focus on Shifting Liability For Consumer Claims

Posted on June 16, 2009
Food Safety Magazine ran an interesting piece by Aaron Krauss titled 'Reducing the Risk of Failure.'  The article was part of the magazine's focus on limiting liability for food companies.  Mr. Krauss includes a good discussion of the pros and cons of indemnities and disclaimers of warranty and liability as ways to shift or reduce liability for claims within the supply chain...

Tips For Successful Multiparty Food Liability Mediation

Posted on June 11, 2009
Mediation has become a critical process for resolving large, multi-party consumer claims. Settlement of these claims is often complicated by insurance and third-party recovery. Often a brokered process is the only practical way to get to a meeting of the minds...

Court Rules That Retailers Have No Duty to Investigate Suppliers Compliance with Organic Regulations

Posted on June 05, 2009
An important ruling was issued last week dismissing claims that milk produced by an organically certified dairy and labeled as organic was not really organic. Plaintiffs in the action asserted violations of various states' laws because they claimed that they paid more for the milk because it was labeled as "organic...

Food Safety Legislation Proposed by House - User Fees and Traceability Are Among Highlights

Posted on June 01, 2009
Last week, members of the U.S. House of Representatives Committee on Energy and Commerce released a discussion draft of the 'Food Safety Enhancement Act of 2009.'   The draft proposes beefing up the FDA registry of 'all food facilities serving American consumers' and charging every facility $1,000 per year to fund FDA food safety activities...

Tracking the Food Safety Working Group - More or Less Legal Exposure Food Sellers?

Posted on May 29, 2009
This week the Obama administration announced the launch of a new website for the recently formed food safety working group. Obama announced the formation of this group in March in the wake of the high-profile food safety issues surrounding PCA peanut products...

Tracking the Food Safety Working Group - More or Less Legal Exposure For Food Sellers?

Posted on May 29, 2009
This week the Obama administration announced the launch of a new website for the recently formed food safety working group. Obama announced the formation of this group in March in the wake of the high-profile food safety issues surrounding PCA peanut products...

A Reminder To Review Insurance

Posted on May 28, 2009
Law 360 has an article up this week titled 'Coverage May Be Tricky For Food Recalls.' I am among the lawyers quoted in the article. For me, the takeaway is that any food company should have in place a strong team of insurance coverage counsel and brokers...

Defending Liability in Foodborne Illness Outbreaks

Posted on May 27, 2009
I'm asked frequently about the 'anatomy of litigation.' I plan to write more in this space on the topic. For now, some may find useful the slides from a presentation I gave recently on 'Defending Liability in Foodborne Illness Outbreaks.' I discussed what I see as three prototypes of consumer claims and possible strategies to respond to each.

The Missing Menu Item: the Farm Products Exception

Posted on May 20, 2009
I just got the latest issue of Business Law Today, published by the Business Law Section of the American Bar Association.  The cover has an intriguing title:  "Food and the Law."  The lead article has a title even closer to my heart:  "Le Menu: the UCC and Food", written by Steven O...

USDA Says Continued Research Needed on Distillers Grains

Posted on May 19, 2009
<p>The <a href="http://fpc.unl.edu/govconf/index.shtml">Nebraska Governor's Conference on Ensuring Food Safety</a> included a lively discussion on <a href="http://www.foodliabilitylaw.com/2008/06/articles/distillers-grains/update-on-distillers-grains-e-coli-link-not-established/">distillers grains</a> and E...

Hamburg Confirmed by Voice Vote in Senate

Posted on May 19, 2009
Dr. Margaret A. Hamburg, President Obama's nominee to head the U.S. Food and Drug Administration, was confirmed by the U.S. Senate yesterday by a voice vote.  The Senate Health, Education, Labor and Pensions Committee had moved up her confirmation hearings because of the imminent threat of H1N1 influenza, and she sailed through both the heaings and action on the Senate floor with bipartisan accolades...

Next Generation Sequencing for the Food Industry

Posted on May 19, 2009
More and more, it is becoming true that nothing drives detection and prevention of food-borne illness than technology (and, of course, with advancements in detection come potential increases in exposure to legal liability)...

USDA Says Continued Research Needed on Distillers Grains

Posted on May 18, 2009
The Nebraska Governor's Conference on Ensuring Food Safety included a lively discussion on distillers grains and E. coli O157:H7. Dr. Jim Wells at USDA presented data that appears to show some correlation between certain levels of cattle-fed distillers grains and the levels of O157 that appeared in the hides of cattle...

How Not to Feed Airport Guards

Posted on May 17, 2009
An Interesting news item out of Kathmandu:  40 airport guards were taken sick with what appears to be dysentery all at the same time.  The cause appears to be eating the same tainted food in the same employee cafeteria.  According to the Malaysian national news agency: All the police personnel used to share a cafeteria...

Are Organic Foods Safer? Will Consumers Continue to Favor Organics?

Posted on May 15, 2009
Nobody disputes that consumers have a favorable view of organic certification in foods. Consumers generally believe that organic foods are healthier, and many believe they taste better. Yet, among food scientists, uncertainty prevails as to whether organics are safer, especially raw fruits and vegetables...

USDA (FSIS) Becoming More Aggressive

Posted on May 14, 2009
At the recent Nebraska Governor's Conference on Ensuring Food Safety, Dan Engeljohn from FSIS (USDA) announced a number of significant policy changes. FSIS's changes in part are consistent with those previously announced under the last administration and in part represent the Obama administration's new priorities...

FDA Warning to General Mills: Cheerios is a Drug

Posted on May 13, 2009
The U.S. Food and Drug Administration is taking issue with claims that Cheerios cereal can lower cholesterol. In a letter to General Mills, the FDA says that statements made on Cheerios packaging like the claim that the cereal is 'clinically proven to help lower cholesterol' make the product a drug under federal law...

The Pistachio Industry Follows the Peanut Industry

Posted on May 11, 2009
When the peanut butter recall hit, the American Peanut Butter Council issued a list of the items that were not affected by the recall, which was isolated to the products of now-defunct Peanut Corporation of America.  The similar, though less-publicized, pistachio recall has also been isolated to pistachios from a single company, Setton Farms...

FDA Seeks Largest Budget Increase in Agency's History

Posted on May 08, 2009
The Food and Drug Administration is seeking to increase its budget for Fiscal Year 2010 by nearly 20 percent more than FY 2009 – to $3.2 billion. The Washington Post reports that the increase is the largest in the agency's history. The FDA's spending request includes $259...

Judge Denies Class Action Status in McDonald's French Fry and Hash Brown Litigation

Posted on May 08, 2009
A lawsuit claiming that McDonald's deceived the public about ingredients in its french fries and hash browns will not proceed as a class action. A federal judge in Chicago has denied the plaintiffs' motion for class certification, characterizing the proposed class and subclasses as 'too indefinite and overbroad...

Salmonella in a Different Language

Posted on May 07, 2009
When the news of salmonella in something as American as peanut butter needs to get out, spreading the word is fairly routine.  What happens when salmonella rissen is found in white pepper distributed mainly to Chinese and other Asian restaurants on the west coast? Union Internatonal Food Company of Union City, California has voluntarily recalled dry spices after 42 cases of salmonella rissen have been reported in California, Oregon, Washington and Nevada...

FDA Commissioner Nominee Faces Confirmation Hearing

Posted on May 07, 2009
Dr. Margaret Hamburg, President Barack Obama's nominee to oversee the Food and Drug Administration, is appearing before a U.S. Senate committee this afternoon regarding her nomination. The confirmation hearing before the Senate Health, Education, Labor and Pensions Committee began at 2:00 p...

Secretary of Agriculture Emphasizes Safety of U.S. Pork

Posted on April 28, 2009
Secretary of Agriculture Tom Vilsack issued a statement today emphasizing that U.S. pork products are safe and that there is no evidence that U.S. swine have been infected with the swine flu virus. Calling trade restrictions on pork or pork products unnecessary, Vilsack said any such restrictions would be inconsistent with World Organization for Animal Health guidelines...

Pork Producers Feel Effects of Swine Flu

Posted on April 27, 2009
Pork producers are feeling the effects of the swine flu as the number of reported cases of the virus increases.  Stock prices for Virginia-based Smithfield Foods, the world's largest pork processor, and Arkansas-based Tyson Foods, fell 12 percent and 9 percent today, respectively...

Michigan Company Announces Frozen Pasta Recall

Posted on April 27, 2009
A Michigan maker of frozen pasta products has issued a recall for products that were distributed to seven states. Canton, Mich.-based Mucci Food Products is recalling an undetermined amount of frozen meat and poultry pasta products because the food was prepared without federal inspection...

FDA and CDC Warn of Salmonella in Raw Sprouts

Posted on April 27, 2009
The U.S. Food and Drug Administration and the Centers for Disease Control and Prevention are recommending against eating raw alfalfa sprouts because of potential salmonella contamination. According to the FDA, the salmonella contamination appears to be in seeds for alfalfa sprouts...

NY Senator to Propose Director of Food Safety Oversight

Posted on April 23, 2009
Senator Charles Schumer (D-NY) is expected to introduce legislation today to strengthen U.S. food safety. Newsday.com is reporting that Sen. Schumer's bill will call for a director of food safety oversight who would be a senior-level director at the Department of Commerce...

Kellogg Co. Agrees to Settle False Advertising Claims

Posted on April 22, 2009
Cereal maker Kellogg Company has entered into a consent agreement with the U.S. Federal Trade Commission to settle charges that certain Kellogg advertisements contain false or misleading statements. At issue in the FTC's complaint are statements from Kellogg's advertising that eating a bowl of Kellogg's Frosted Mini-Wheats cereal for breakfast is clinically shown to improve kids' attentiveness by nearly 20 percent...

Ivar's Turkey Soup Recall

Posted on April 22, 2009
Ivar Haglund was a Seattle legend.  In these parts, he was known only by his first name, the way you can refer to "Michael" when you're discussing basketball and people know you mean Michael Jordan.  His food is at Sea-Tac Airport, Safeco Field and Qwest Field...

Update: Supreme Court Declines Review of Methylmercury Case With Potential Preemption Implications

Posted on April 21, 2009
An update to a case we've been following: the U.S. Supreme Court has refused to review a decision by the U.S. Court of Appeals for the Third Circuit involving state-law claims over methylmercury content in canned tuna. The Supreme Court's order in Tri-Union Seafoods, LLC v...

Update on the Rojak Case

Posted on April 15, 2009
The rojak-related outbreak in Singapore happened only on April 3, but the Singapore health officials have already issued their official report.  The report links the illnesses to Vibrio parahaemolyticus, which in turn got into the rojak by having raw cuttlefish on an upper shelf of a refrigerator, which dripped into the gravy on the lower shelf of the refrigerator...

Nebraska Governor's Conference on E. Coli

Posted on April 13, 2009
The third annual Nebraska Governor's Conference on Food Safety Issues related to E. coli is May 5-7 in Lincoln, Nebraska. Together with Bill Marler, I have been invited to speak to agricultural stakeholders about legal issues and ramifications of Shiga toxin-producing E...

FDA Seeks Input on Intentional Adulteration of Products

Posted on April 13, 2009
The Food and Drug Administration has announced an effort to explore the intentional adulteration of products to increase a producer's bottom line. So-called 'economically motivated adulteration,' or EMA, is the topic of an FDA-sponsored public meeting to be held on May 1 in College Park, Maryland...

Food-Borne Illness: Glass Half-Empty or Half-Full?

Posted on April 09, 2009
The Centers for Disease Control has issued a study of the incidence of food-borne illness in ten states.  The study, by the Foodborne Diseases Active Surveillance Network, known as "FoodNet", in general concludes that food-borne illness has not significantly either increased or decreased in the United States since 2004, after substantial gains in food safety from 1996 to 2004...

The High Cost of Loving Rojak

Posted on April 08, 2009
Rojak is an important Singaporean dish.  To the Indonesian rudjek, basically a salad, is added (for the Indian version most popular in Singapore) yu tiao, sort of a doughnut; ju her, a cuttlefish salad; taupok, which are tofu puffs; or pei tan, which are preserved duck eggs...

A Bad Week for Grapefruit

Posted on April 06, 2009
The Lancet reported last week that a "constellation of potential risk factors" had almost cost a woman in Olympia, Washington her leg.  Dr. Lucinda Grande reported that the woman had started a "grapefruit diet", while taking birth control pills and having a previously undiagnosed genetic condition, while remaining immobile in her car for an extended period...

California Lawmakers Announce Proposed Food-Safety Reforms in Wake of Pistachio Recalls

Posted on April 02, 2009
As pistachio recalls continue to be announced in the wake of salmonella-tainted pistachios from Setton Farms, two California lawmakers this week announced legislation that is expected to strengthen food-safety standards in that state. The bill to be introduced in the California State Assembly by Assembly Speaker Karen Bass and Assemblyman Mike Feuer is expected to require detailed safety plans from food processors, periodic testing of food at California food processing facilities, and requirements for food processors to report to state authorities any positive tests for a dangerous contaminant within 24 hours...

More on Pistachios and Setton Farms

Posted on April 01, 2009
As I predicted yesterday, the pistachio recall is affecting more products.  The FDA has a nice list.  Meanwhile, the Setton Farms website, as of 1:30 pm PDT today, still has no information on the recall. 

The Pistachio Recall: More Salmonella

Posted on March 31, 2009
The FDA and the California Department of Public Health announced on March 30 the recall of pistachios from Setton Farms, which have been linked to a discovery of salmonella originally identified by Kraft Foods in Back to Nature Trail Mix.  The FDA has a list of recalled products, but that may grow...

The Uniform Commercial Code and Food Recalls

Posted on March 24, 2009
Article 2 of The Uniform Commercial Code.  The Uniform Commercial Code ("UCC") is my Bible.  So, when I read about the pain caused to businesses and charities by the peanut butter recall, I look first to the UCC to see what might be available to help...

Back to School

Posted on March 23, 2009
In the next couple of weeks, I have the unique opportunity to travel back to Cornell University, my law school alma mater, to spend time getting acquainted with its world renowned food science program. While in "gorges" Ithaca, I plan to audit courses such as 'Food Safety Assurance' and 'Current Topics in Food Science & Technology...

Nestle's Makes the Very Best Peanut Decision

Posted on March 23, 2009
On Thursday, March 19, the Oversight and Investigations Subcommittee of the House Energy and Commerce Committee held another hearing on Peanut Corporation of America and the Salmonella outbreak.  A focus of the hearing was the different choices made by Nestle USA, which had refused to buy PCA peanuts, and the companies testifying at the hearing, including Kellogg and King Nut, which had...

Georgia House Unanimously Passes Food Safety Bill; Kellogg CEO Calls for Food Safety Reforms

Posted on March 18, 2009
Update to today's earlier post: the Georgia House of Representatives unanimously passed a bill today that would strengthen food safety laws in Georgia. The Georgia House and Senate now will resolve minor differences in the proposed legislation and send a final version to Georgia Gov...

Georgia is One Step Closer to Tough New Food Safety Law

Posted on March 18, 2009
The Georgia House of Representatives today considers proposed legislation to strengthen food safety rules in that state.  Among other things, Senate Bill 80 includes a provision that would require food makers to alert state inspectors within 24 hours if a plant's internal tests show products are tainted...

California Appeals Court: No Mercury Warnings Required on Canned Tuna

Posted on March 17, 2009
The California Court of Appeal for the First Appellate District has upheld a trial court ruling that canned tuna sold in California need not warn consumers about methylmercury.   In 2004, the State of California sued three tuna companies: Tri-Union Seafoods, LLC; Del Monte Corporation; and Bumble Bee Foods, LLC...

Obama Administration Focuses on Food Safety

Posted on March 16, 2009
The Obama administration placed food safety front and center over the weekend. In his weekly radio address, President Obama on Saturday announced new leadership at the Food and Drug Administration and the creation of a panel to toughen food safety laws...

Maple Leaf Foods: A Case Study in the Persistence of Memory

Posted on March 11, 2009
Maple Leaf Foods is Canada's largest food processor, and as the name implies, it traces its history a long way with our neighbor to the north.  It has always prided itself on its food safety procedures.  Last year, as was widely reported, more than 20 people all across Canada died from listeriosis traced to one of Maple Leaf's processing plants in Toronto...

Alaska Unfair Trade Practices and Consumer Protection Statute

Posted on March 09, 2009
As discussed previously on this blog, the ABA Section of Litigation, Products Liability Committee will soon publish its 50-state survey on consumer protection statutes. In addition to the chapter on Washington, Bryan Anderson and I also coauthored the Alaska chapter...

The Best Restaurant on Earth Closed Due to Food Poisoning

Posted on March 02, 2009

Two Stories from China on the Same Day

Posted on February 24, 2009
The curious juxtaposition of these two stories from China on the same day is striking. In the first story, two men were sentenced to death for purposely poisoning the food in a snack bar in Shenzhen City with sodium nitrite.  It appears that a deal to develop a skating rink was contingent on removing a popular marketplace, and the ringleaders decided the best way to do that was to poison people at the marketplace, which they did in February 2008...

Two Stories from China on the Same Day (with an update)

Posted on February 24, 2009
The curious juxtaposition of these two stories from China on the same day is striking. In the first story, two men were sentenced to death for purposely poisoning the food in a snack bar in Shenzhen City with sodium nitrite.  It appears that a deal to develop a skating rink was contingent on removing a popular marketplace, and the ringleaders decided the best way to do that was to poison people at the marketplace, which they did in February 2008...

Washington Consumer Protection Law

Posted on February 23, 2009
The ABA Section of Litigation, Products Liability Committee will soon publish its 50-state survey on consumer protection statutes. Bryan Anderson and I coauthored the chapter for the state of Washington. As described in our article, Washington’s Consumer Protection Act, RCW 19...

Senator Durbin Likely to Introduce New Food Safety Legislation

Posted on February 20, 2009
The National Grain and Feed Association has reported to its members that Senator Richard Durbin (D-IL), is likely to reintroduce food safety legislation next week.  Senator Durbin has introduced similar bills in prior Congresses.  Likely, co-sponsors include Senator Edward M...

The Peanut Recall Hits Bird Food

Posted on February 17, 2009
Reuters is reporting that Scotts Miracle-Gro shares dropped today on news that some of its bird food may contain peanut meal that was bought from now-bankrupt Peanut Corporation of America.  A blog called Birdchick reports that many other bird feed companies were able to confirm that they did not include PCA peanut meal in their suet...

PCA Files for Chapter 7 Bankruptcy

Posted on February 13, 2009
It will come as no surprise that Peanut Corporation of America has filed for bankruptcy protection in the Western District of Virginia.  According to the bankruptcy filing, PCA claims to have debts of only between $1 and $10 million, and between 100 and 199 creditors...

A Nicely Balanced Article from the AP

Posted on February 13, 2009
I came across this article on Google News from Holly Ramer at the AP.  What I liked about the article is that it is not afraid to quote from parents who are still feeding peanut butter to their kids.  Among those parents: President Obama and his wife Michelle...

PCA President Parnell Pleads Fifth Amendment Before House Committee

Posted on February 11, 2009
Stewart Parnell, President and owner of Peanut Corporation of America, appeared before a subcommittee of the House Committee on Oversight and Government Reform today.  The hearing did without his testimony, howevver, as he pleaded the Fifth Amendment...

The Human Cost of the Peanut Recall Part Three

Posted on February 11, 2009
This article in today's Seattle Post-Intelligencer is, of course, pretty much self-explanatory.  That I've left this side of the tragedy to Part Three is because it's been so hard to face.  The article did a great job of handling it, and is a reason I'm going to miss the P-I if, as it is expected to, it folds next month.

The Human Cost of the Peanut Butter Recall Part Two

Posted on February 11, 2009
According to a Bloomberg report, over 100 companies, including Kellogg Company., The Kroger Co., and Unilever plc expect to post losses as a result of the Peanut Company of America debacle.  Although it is not specified in the article, I presume these are mainly public companies who have statutory obligations to post information about their expected losses...

PCA Recall - Insurance Lessons for Food Sellers

Posted on February 11, 2009
Bill Marler posted on his blog recently a complaint for declaratory relief filed by an insurer for Peanut Corporation of America (“PCA”). Mr. Marler comments, “Frankly, I read this suit several times and still do not see what the fight is about...

Update on Criminal Risk Management: The Peanut Case

Posted on February 09, 2009
By Guest Blogger Per Ramfjord   In my February 3, 2009 blog entry, I briefly discussed the steps a company should take to avoid criminal prosecution under the Federal Food Drug and Cosmetic Act. The FDA’s criminal investigation of Peanut Corporation of America continues to provide lessons on this subject—in particular, on what not to do...

Irradiation as a Part of Food Safety Reform?

Posted on February 09, 2009
In the wake of the latest Salmonella recall, Congress is holding well-publicized food safety hearings, and food safety may be rising on the priority list of the Obama administration. One question that arises is whether the perceived crisis in food safety will lead lawmakers and the public to revisit the option of food irradiation...

The Human Cost of the Peanut Recall Part One

Posted on February 06, 2009
The headline in last Friday's Seattle Post-Intelligencer read, "Local Food Banks Go Peanut-Free."   A main supplier to food banks in the Puget Sound region, Food Lifeline, has decided to quarantine all peanut products "rather than try to keep up with the flood of U...

FDA's Searchable Widget for Peanut Product Recall

Posted on February 05, 2009
UPDATE to the Salmonella-driven peanut product recall: as the number of peanut products recalled continues to rise, the U.S. Food and Drug Administration has created a Web widget that allows users to search for peanut-containing product recalls (see below)...

Is More Bad By-Products News Coming for Biofuels Producers?

Posted on February 04, 2009
2008 was a terrible year for makers of ethanol and biodiesel. Huge spikes in the prices of raw materials, natural gas and transportation and drops in the prices they received for their main products have driven many of them to cut back production, shutter plants or even seek bankruptcy protection...

Avoiding Criminal Prosecution Under The FFDCA

Posted on February 03, 2009
By guest blogger Per Ramfjord The FDA’s recent announcement that it is pursuing a criminal investigation of Peanut Corporation of America, arising out of the Salmonella-driven peanut product recall, is sure to raise concerns with executives in food product companies throughout the country...

Another High-Profile California Labeling Case

Posted on February 02, 2009
Center for Science in the Public Interest (CSPI) recently filed a putative class action in federal court in the Northern District of California claiming that Glacéau’s VitaminWater is mislabeled under California law. This suit comes on the heels of the recent Ninth Circuit decision that remanded the Gerber foods case...

Upcoming Hot Topics in Food Law Teleconfernce

Posted on January 30, 2009
UPDATE - This panel will address emerging issues related to the recalls and investigations related to the Peanut Corporation of America. The panel includes persons intimately involved with these issues. Anybody with an interest in the peanut recall should register and tune-in...

Lengthy List of Products NOT Affected By Peanut Butter Recall

Posted on January 23, 2009
UPDATE  to "Avoiding the Panic" - The American Peanut Butter Council has a website that lists products it knows are UNAFFECTED by the peanut butter recall associated with the current Salmonella outbreak. The list of unaffected products is lengthy and growing...

Supreme Court Asked to Hear Preemption Case Involving Methylmercury; FDA Issues Draft Documents Regarding Consuming Commercial Fish

Posted on January 22, 2009
By Guest Blogger Bryan Anderson The maker of Chicken of the Sea products has asked the U.S. Supreme Court to grant certiorari in a case we reported on involving preemption of state-law tort claims. In August 2008, the Third Circuit in Fellner v. Tri-Union Seafoods, LLC reversed the district court and held that Food and Drug Administration (FDA) actions regarding methylmercury content in tuna did not preempt the plaintiff’s claims under the New Jersey Product Liability Act...

Peanut Butter - Avoiding The Panic

Posted on January 19, 2009
Marler Blog and some of the press have been sounding the alarm on all peanut butter products.  True the FDA and CDC have been investigating a multi-state Salmonella outbreak and that there may be a connection with certain peanut butter products...

Upcoming Hot Topics in Food Law Teleconfernce

Posted on January 15, 2009
The American Bar Association is presenting its second Hot Topics in Food Law teleconference on February 10, 2009 at 10am Pacific Time (1pm EST).  Anybody connected with the food industry and concerned with risks affecting the industry should consider registering...

Supreme Court Denies Certiorari on Salmon Labeling Case

Posted on January 13, 2009
UPDATE to previous blog entries about the California salmon labeling case (Albertsons v. Kanter) - Just yesterday, the U.S. Supreme Court denied certiorari.  The Supreme Court's ruling followed briefing submitted by the Solicitor General (aka Bush Administration)...

What to Do When the Investigators Knock . . .

Posted on January 08, 2009
This week brought news of yet another nationwide Salmonella outbreak from a source not yet identified by government regulators. The last time we had a nationwide Salmonella outbreak for an extended period of time without identification of a definitive source the federal government initially singled out tomatoes imported from Mexico (a huge array of products)...

When Is Labeling Misleading and Actionable Under State Law? Is There Any Clearly Understood Standard?

Posted on January 06, 2009
A recent Ninth Circuit case again raises serious questions as to whether there are any clearly defined legal standards as to when a food label is misleading and when it’s not. Manufacturers who are in compliance with federal standards for labeling may still be liable under state law...

Happy New Year and Thank You

Posted on January 01, 2009
Happy New Year. Thank you for your support, readership and feedback for this site. Since we launched the blog in late February of 2008, the growth in readership has been extraordinary. I'm overwhelmed at the response. My hope is that the blog has provided some measure of assistance to those in the food industry...

Five New Year's Resolutions

Posted on December 31, 2008
Unfortunately, 2009 does not promise to be any easier than 2008 in protecting your business against food liability claims. Many argue that threats will only increase in the new year. Here are five things you can do to reduce exposure in the coming year: 1...

The Latest On The Battle Over Federal Preemption of State Salmon Labeling Claims. . .

Posted on December 26, 2008
  The Supreme Court signaled last fall it may review a California Supreme Court decision finding that federal law does not preempt claims for violations of state consumer protection laws concerning “selling artificially colored farmed salmon without disclosing to ...

Practical Advice for Litigating the Food Case

Posted on December 17, 2008
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Is It A Really Food-Borne Illness?

Posted on December 16, 2008
At a recent presentation, Dr. Alan Melnick, a public health officer in both Oregon and Washington, provided a useful list of alternative causes of symptoms to consider when someone claims a food-borne illness. Other causes of symptoms that might be confused for food-borne illness include (but may not be limited to): Irritable bowel syndrome (IBS) Inflammatory bowel disease Malignancies Antibiotic use Gastro-intestinal surgery or radiation Malabsorption syndromes Immune deficiency Another practical piece of advice offered by Dr...

Crisis Management So Simple Even A Pre-Schooler Could Do It. . .

Posted on December 12, 2008
Last week’s ACI conference included a great session on crisis management. David Hermann from the GMA gave a presentation on “Effective Crisis Leadership: 5 Basic Rules You Learned as a Kid.” His presentation reflected a proactive approach and showed ways to build an effective crisis-management plan...

2009 Priorities for USDA in Food Safety

Posted on December 11, 2008
I just returned from ACI’s Second National Forum on Food-Borne Illness, which included several interesting presentations and discussions. One was by Dan Engeljohn, Deputy Assistant Administrator of the Office of Policy and Program Development at the Food Safety and Inspection Service (“FSIS”)...

Dramatic Shift in Plaintiffs' Burden of Proof for Food-Borne Illness Claims?

Posted on December 04, 2008
A California Court of Appeal panel recently issued a lengthy decision in Sarti v. Salt Creek Ltd. (2008 WL 5006537)  reversing a trial court’s grant of judgment notwithstanding the verdict  (JNOV) in a food-borne illness case involving campylobacter...

The Billable Hour - Reflections on the CLE

Posted on November 26, 2008
I had the privilege of participating as a speaker at the Billable Hour CLE held recently at Seattle University School of Law. As an “outside” counsel, here were some of the most significant things I learned: 1. Clients may find the billable-hour system “frustrating...

More on Melamine . . .

Posted on November 21, 2008
I was interviewed recently by Food Innovation Weekly on “Melamine, Recalls and Crisis Management.” This question-and-answer article discusses how the waves of melamine issues circling the globe affect the way a company should think about crisis management...

Registration Still Open For The ACI Food-Borne Illness Litigation Conference in Scottsdale

Posted on November 20, 2008
December 4-5 is the American Conference Institute’s 2nd National Forum on Food-Borne Illness Litigation. The first forum turned out to be a very engaging and diverse forum (e.g. plaintiffs lawyers, industry lawyers, top state and federal officials) on emerging issues in food-borne illness...

Nitty-Gritty on Menu Labeling Regulations and What Can Be Done to Stem Consumer Litigation

Posted on November 13, 2008
As restaurant chains operating in King County, Washington are readying to comply with the new menu labeling law, serious questions arise. Does each menu item have to be sent to an expensive lab for testing? How accurate does the nutritional information need to be? How does a restaurant account for the inevitable variables of made-to-order meal preparation (an extra tablespoon of cooking oil can add 120 calories to a dish)?  Does a restaurant that complies with the King County law open itself to consumer labeling claims because its nutritional information cannot be 100 percent accurate? According to the Seattle Post Intelligencer (“PI”), the question concerning the tools that can be used by a restuarant  chain to determine nutritional information may have been resolved in King County...

Breakthrough in Detection of BSE (a.k.a. "Mad Cow Disease")

Posted on November 12, 2008
No food-borne illness induces consumer fear like Bovine Spongiform Encephalopathy (BSE a.k.a. "Mad Cow Disease"). The beef industry in particular has gone to great lengths to take preventative steps against the introduction of BSE into U.S. herds...

Preparation for Melamine Issues- Updating Crisis Management Plans and Insurance Coverage

Posted on November 07, 2008
While largely under the radar in the American press due to the compelling election cycle and historical meltdown in the financial markets, the news out of China concerning melamine has gone from bad to worse. Concern about Chinese dairies has morphed into a global crisis affecting what seems like an infinite number of products tainted with melamine...

Change You Can Expect: What President Obama May Do About Food-Borne Illness Surveillance

Posted on November 06, 2008
The Obama administration has promised sweeping changes in all corners of the federal government. We can expect the new President to push an ambitious legislative and administrative law agenda in 2009. What does this mean for food regulation? A partial answer may be gleaned by looking at the Improving Food-borne Illness Surveillance and Response Act of 2008, a bill Obama introduced last summer after he become the presumptive Democratic nominee...

Another Reminder Why Indemnification and Insurance Requirements Are Important

Posted on October 31, 2008
Last month, a state judge in Minnesota awarded summary judgment to a lettuce supplier of restaurants associated with an E. coli outbreak in 2006. The restaurant supplier brought suit against its suppliers. The suit appears to have been based at least in part on an indemnification agreement between Vistar (which delivered lettuce to restaurants) and Bix (which supplied lettuce to Vistar)...

More on Supply Chain Verification and Crisis Management

Posted on October 17, 2008
Food Safety Magazine’s latest issue focuses on “Industry in Crisis Mode.” The issue includes an article by Shaun Kennedy, director of the National Center for Food Protection and Defense (NCFPD). Mr. Kennedy provides a good overview of the elements of a supply chain verification program that any food seller should consider...

Court to Rule on Consumers' Expectations For Organic Cosmetics

Posted on October 16, 2008
Dr. Bronner’s Magic Soaps (“Dr. Bronner’s”) received a favorable ruling recently in its suit against competitors that it believes are misleading consumers by labeling cosmetic products as “Organic”. Part of Dr. Bronner’s claim appears to be that “Organic” standards established by the U...

Salmon Labeling Probably Headed to Supreme Court

Posted on October 13, 2008
The U.S. Supreme Court  signaled last week that it may review a California Supreme Court decision finding that federal law does not preempt claims for violations of state consumer protection laws concerning “selling artificially colored farmed salmon without disclosing to ...

The Billable Hour

Posted on October 07, 2008
A little off topic - I've been asked to speak at an upcoming CLE program at Seattle University Law School entitled "The Billable Hour: An Examination of Compensation."  For those responsible for legal budgets (whether an in-house lawyer managing a budget or an outside lawyer like myself who is working within a budget), this promises to be a provocative conversation...

Some In The Plaintiffs' Bar Favor Irradiation

Posted on October 06, 2008
As previously discussed on this blog, the FDA recently approved irradiation for iceberg lettuce and spinach. We pointed out  that "irradiation may provide an added level of protection from food-borne illnesses such as salmonella and E. coli...

Forest Through the Trees: Lessons from a Crisis Management Case Study

Posted on October 02, 2008
There was a nice article in the Canadian legal publication Law Times about the aftermath of the Maple Leaf Foods recall. The article praises Maple Leaf Foods for taking quick steps to salvage consumer confidence in the face of a Listeria outbreak across Canada...

California Menu Labeling Laws--Restaurants Beware of Asking What Your Customer Wants!

Posted on October 01, 2008
Yesterday, California became the first state in the Union to write into law menu labeling requirements. Like municipal ordinances recently enacted in New York City and Seattle, the California law requires certain “chain” restaurants to disclose nutritional information and calorie content information for certain items...

Lessons from Toxic Rice and Chinese Dairies - Threats From Bioterrorism and Supplier Fraud

Posted on September 26, 2008
Manufacturer fraud and bioterrorism should be on the radar screen for any food producer. Apart from the meltdown in the U.S. financial markets and presidential politics, the big news this week is toxic rice from Southeast Asia and melamine-tainted dairy products from China...

Anatomy of a Food-Borne Illness Claim - Part I

Posted on September 19, 2008
Recently, I’ve received several requests for resources explaining the anatomy of a food-borne illness claim. In other words, what events can be expected, and when? What can or should a company (in particular the legal department) do in response to a claim? Part I – Notice of an Outbreak (and Possible Claims)   First off, don’t panic...

New York Times on Nutraceuticals

Posted on September 17, 2008
The New York Times has a piece on nutraceuticals that caught my eye as an example of the news media’s skepticism about fortified food. The article begins: “O[ff] the coast of Peru swim billions of sardines and anchovies: oily, smelly little fish, rich in nutritious omega-3 fatty acids...

"Organic Pathogens Exclusion"

Posted on September 10, 2008
Insurers are making efforts to exclude food-borne illness claims from coverage under comprehensive general liability (“CGL”) policies. The "Organic Pathogens Exclusion" is a good example. While a claim for food-borne illness may normally be covered by a CGL policy, if you have an organic pathogens exclusion, your insurer will not provide a defense and will not cover your losses if your business is sued as a result of a food-borne illness...

Dos and Don'ts for Executives Managing a Crisis

Posted on September 03, 2008
As discussed frequently in this blog, management of an outbreak at its inception determines the course of the crisis (and, in some cases, the fate of the company). The Globe and Mail, in its ongoing coverage of the Maple Leaf Foods Listeria outbreak, today published a helpful punch list of 15 dos and don’ts for corporate executives managing a food-borne outbreak...

Tuna's Not Just for Breakfast Anymore - Third Circuit Refuses FDA's Pleas for Federal Preemption

Posted on September 02, 2008
By Guest Blogger Amena Jefferson (Stoel Rives Summer Associate and UW law student) Federal preemption is on the table once again. The U.S. Court of Appeals for the Third Circuit recently decided Fellner v. Tri-Union Seafoods, No. 07-1238, 2008 WL 3842925 (3d Cir...

Developing A Strategy For Crisis Management

Posted on August 28, 2008
An upcoming panel discussion at the Nutritional Law Symposium in Utah and a call from a reporter about the Maple Leaf Foods issue in Canada have me thinking a lot about crisis management. How a business responds at the outset of an alleged food-borne outbreak determines its fate in many ways...

Irradiation - Evaluating the Investment

Posted on August 25, 2008
With a fair amount of fanfare , last week the FDA approved irradiation of iceburg lettuce and spinach. For restaurant owners, the question is whether they should invest in this process. Like pasteurization, irradiation may provide an added level of protection from food-borne illnesses such as salmonella and E...

More on Compensation for Tomato Growers

Posted on August 21, 2008
I wrote recently about legislation introduced in Congress to compensate tomato growers for their losses during the recent and protracted Salmonella Saintpaul investigation.  While the legislation has not yet advanced, Cindy Skrzycki from Bloomberg...

Government Assistance for Rotten Tomatoes?

Posted on August 05, 2008
     I recently received a call from a reporter about legislation introduced by Representative Tim Mahoney (D-Fl), that would provide “emergency assistance to growers and first handlers of tomatoes.”  The text of the bill, HR 6581, as referred to the House Agriculture Committee reads as follows: SECTION 1...

"Canada is Next"

Posted on August 01, 2008
Anyone interested in trends in cross-border mass-torts litigation and the nightmare this is becoming should read a recent article in Bloomberg Law Reports entitled "Brave New World: The Dawn of Hyper-Complex Litigation" In the article, appears the following: "The Canadian Double-Down" "At a January 2008 products liability symposium, a well-regarded New York City plaintiffs’ attorney stood before a room of lawyers and in-house counsel...

King County Menu Labeling Goes into Effect August 1, 2008--Yet Another Call for Preemption?

Posted on July 14, 2008
Effective August 1, King County, Washington, will impose the strictest menu labeling law in the nation. King County’s law imposes menu labeling requirements, on restaurant chains that have the following characteristics: 1. The same name. 2...

Good Time To Review Crisis Management Plans

Posted on July 07, 2008
Incredibly, the Salmonella Saintpaul outbreak remains unsolved. First reported onset of illness date was April 10, yet the traceback is still not complete. Personal injury and economic damage claims await for the FDA and CDC to determine causation. Produce industry, particularly in Mexico, stands to suffer long lasting injury...

Update On Distillers Grains - E. coli Link Not Established

Posted on June 28, 2008
By Guest Blogger Jason Johns We've previously discussed ongoing research concerning safety of distillers grains previously. An article on distillers grains and E. coli in Distillers Grains Monthly (Third Quarter 2008) suggests that the scientific debate continues, and questions remain unanswered...

More on The Raw Milk Debate - Consumer Choice vs. Consumer Protection

Posted on June 24, 2008
Recently discussed on this site was how the raw milk debate is in many ways ground zero for the debate between consumer protection and consumer choice. The Seattle Post Intelligencer ran an interesting piece today focusing on just that debate. I found comments attributed in the article to Kansas State professor Doug Powell most salient: Doug Powell says he's not surprised that government health officials denounce the dangers of raw milk then turn around and license the sale of the same milk...

Tomato Fallout - Recall Insurance Coverage Disputes

Posted on June 17, 2008
In the wake of the FDA warning on tomatoes (which remains ongoing because the FDA hasn’t identified the source of the salmonella outbreak), questions arise about its economic impact. The 2006 spinach outbreak caused massive economic damage in lost sales...

Yes, We Have No Tomatoes

Posted on June 11, 2008
By Guest Blogger Richard GoldfarbSunday, at a local restaurant, I saw a sign saying that there would be no fresh sliced tomatoes on my burger. Although it is quite clear that there are safe tomatoes available, the FDA has encouraged restaurants simply to cease selling them...

Raw Milk Debate: Ground Zero For The Conflict Between Consumer Rights and Consumer Protection?

Posted on June 01, 2008
First a disclaimer: Personally, I’m not convinced of the health benefits of raw milk, though I’m told many exist. I’m also not convinced of the argument that raw milk is less safe than pasteurized milk. After all, foodborne disease continues to be transmitted by pasteurized milk, despite its pasteurization...

A Cry for Federal Preemption?

Posted on May 19, 2008
In Arkansas, a putative class action has been filed by consumers who allege violations of consumer protection laws of four states because they purchased Tyson chicken products with packaging labeled, “Raised Without Antibiotics.” The plaintiffs claim that the packaging was “deceptive,” and they were “de-frauded” because the feed consumed by the chickens contained Ionophores, which is classified by the FDA as an antibiotic...

What Is the Utility of Microbiological Testing Data in Litigation?

Posted on May 07, 2008
As microbiological testing of products in the field or in processing plants becomes more frequent (even ubiquitous), there are questions about its usefulness.  Microbiologists say that the utility of microbiological sampling as it is currently done is marginal at best...

"Shotgun Questionnaire"--An Important Tool in Food Liability Defense

Posted on April 15, 2008
Food-borne illness cases generally involve strict liability. If a plaintiff can show illness and a causational link between the illness and adulterated food produced by the defendant, the defendant generally will be liable for damages proven by the plaintiff...

FSIS to Begin Testing for Non-O157 E. Coli

Posted on April 14, 2008
Dr. Richard Raymond, Under Secretary for Food Safety at the USDA, dropped a bombshell this week. As reported in the Des Moines Register, Dr. Raymond explained at the Seattle University food law symposium that his agency will begin testing for at least six different non-O157 E...

Stay Tuned for More Non-O157 Information

Posted on April 08, 2008
Tomorrow FSIS will hold a meeting to discuss “challenges and proposed solutions in moving forward to address recalls and illnesses related to E. coli O157:H7.”  The meeting will “explore proposed next steps as a means to make progress in the challenge of addressing E...

Registration Filling Fast For April 11-12 Food Law Symposium

Posted on April 01, 2008
Next week’s food law symposium at Seattle University School of Law, cosponsored by my law firm, Stoel Rives is approaching quickly (I will be one of the moderators). In attendance will be Governor Christine Gregoire, top officials from the CDC and the USDA, representatives of the food industry, scientists, consumer advocates, food lawyers (both plaintiff and defense), and other stakeholders...

CDC Believes That Risks Associated with Leafy Greens Have Been on the Rise

Posted on March 26, 2008
Following the high-profile leafy greens E. coli outbreaks in 2006, CDC started studying the trends. It concluded that “during 1996 2005 leafy green consumption increased 9% and leafy green-associated outbreaks increased 39%,” according to a recent article on ScienceDaily...

Importance of Experts At Outset of Outbreak

Posted on March 21, 2008
A few weeks ago, I gave a presentation at a CLE seminar about how to use and challenge expert witnesses in a food case. One of the interesting discussions that occurred during my talk was about the importance of retention of experts at an early stage, even before health department officials finalize their findings...

FSIS to Start Posting Plant Testing Data

Posted on March 10, 2008
I wrote earlier about Dr. David Goldman's talk at the ACI Food-Borne Illness Litigation conference and his comments regarding supermarkets. Another significant issue concerns posting by FSIS of microbiological testing results from meat and poultry plants on its Web site...

Mitigating Supermarket Liability

Posted on March 04, 2008
Last week I had the privilege of attending and speaking at the American Conference Institute’s foodborne illness conference in Scottsdale, Arizona. One of the other speakers was David Goldman, M.D., Ph.D., Assistant Administrator of the Office of Public Health Science, Food Safety and Inspection Service (“FSIS”), United States Department of Agriculture (“USDA”)...

USDA to Study Distillers Grains

Posted on February 19, 2008
We recently published an email alert concerning studies allegedly linking distillers grains and E. coli O157:H7. The Des Moines Register ran a recent article on the subject.  The article mentions the ongoing study by the USDA. The USDA study  “will collect hide and feces samples from 300 control and 300 cattle fed diets supplemented with distillers grains...

Criticizing Food Sellers for Being Too Cautious About Food Safety?

Posted on February 19, 2008
I was surprised to see criticism in the blogosphere about recent efforts by Trader Joe’s and Wegmans supermarkets to restrict certain items of Chinese-grown produce (e.g., spinach and garlic) from their shelves. The critique seems to be that because some U...

Loyalty Cards and Product Recalls

Posted on February 19, 2008
 Last week, a supermarket chain, Wegmans, learned that an employee working in the produce department contracted Hepatitis A. Like many supermarket chains, Wegmans, based in Rochester, New York, maintains a customer loyalty card system.  According to the Buffalo News, , “the store plans an outreach to its customers they know purchased potentially affected produce by using Shoppers Club data to contact them via automated telephone calls...

Why The Fuss About Food Liability?

Posted on February 19, 2008
As we planned the launch of this blog, many asked, “Why the fuss now about food liability?”  Food poisoning has always been a part of human history.  Food liability litigation has been around for a long time.  Products liability law traces its roots to food cases...

California Farm-Raised Salmon Cases - Preemption

Posted on February 19, 2008
The California Supreme Court last week issued an opinion that federal law does not preempt complaints brought under state deceptive-marketing laws against grocery stores for allegedly selling artificially colored salmon. The trial court found that claims were preempted by section 337(a) of title 21 of the U...

Preemption of Organic Foods Claims

Posted on February 19, 2008
We recently published a client alert about the claims being asserted against retailers for selling as “organic” milk that some believe may not be organic, as defined under the Organic Foods Production Act of 1990 A prime issue in this litigation is preemption...