Consumer Product Matters

A product safety and consumer related regulation and litigation blog

Update: Syngenta Litigation Regarding GMO Corn

Posted in Distributors, Food and Beverage, Importer Safety, Litigation, Supply Chain Risk Management

In a recent post, we detailed lawsuits filed by corn exporters, farmers, and other stakeholders against Syngenta Corp. regarding its marketing of corn which contains genetically modified (“GMO”) traits that have not been approved for export to countries such as China.  On December 11, 2014, the Judicial Panel on Multidistrict Litigation agreed to consolidate multiple class actions and other suits filed against Syngenta by corn farmers, exporters, and others.  As the Panel described in its transfer order, “[a]ll actions involve common factual questions regarding Syngenta’s decision to commercialize the MIR 162 genetically modified corn trait in the absence of Chinese approval to import corn with that trait,” and thus these cases are to be consolidated in the District of Kansas before U.S. District Judge John Lungstrum, who has a depth of experience with complex litigation.   The case previously discussed in detail in this space, Archer Daniels Midland Co. v. Syngenta, was filed in Louisiana state court and has not yet been consolidated with the myriad federal actions in the District of Kansas.

Additionally, earlier this week, in a separate action that related to Syngenta’s marketing of its GMO corn, Syngenta ended its dispute with Bunge North America Inc. (“Bunge”) in which Syngenta alleged that Bunge had engaged in a false advertising campaign by posting signs at its receiving facilities that stated that Bunge would not accept Syngenta’s GMO corn because it has not been approved for export to China.  In their dismissal stipulation, the parties agreed to dismiss the case with prejudice without an award of fees or costs to any party.

Stay tuned to this space for further updates regarding Syngenta’s GMO corn litigation.

Vermont Doubles Down: Representative Testifies Before Congress Against Federal GMO Labeling Bill

Posted in Advertising, Federal Regulations, Food & Drug Administration (FDA), Food and Beverage, State Consumer Protection Laws, State Regulations, U.S. Congress

As we’ve explored in past posts, Congress is currently considering a bill that aims to harmonize the patchwork of state efforts at regulating GMO labeling by placing such regulation firmly within FDA’s jurisdiction. Dubbed the Safe and Accurate Food Labeling Act (H.R. 4432), this bill would give FDA exclusive authority to regulate the labeling of products containing GMOs, effectively preempting state legislation in this field.

This past Wednesday, the House Energy and Commerce Committee held a hearing to consider that bill as well as the broader question of whether and how the federal government should regulate GMO labeling. Members of the Committee heard testimony from six witnesses on both sides of the debate over the course of three hours.

On the side against GMO labeling, perhaps the most influential witnesses were Michael Landa, the director of FDA’s Center for Food Safety and Applied Nutrition, and Tom Dempsey, the President and CEO of the Snack Food Association. The most notable voice on the other side: Representative Kate Webb of Vermont, the only state to have passed a GMO labeling law that does not depend on other states to act before going into effect. The contrasting testimony from these witnesses vividly illustrates the poles of this debate, and the questions posed by the Committee give a meaningful glimpse into the factors that may motivate Congressional action.

More highlights from the hearing below:

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2015 Omnibus Provides $123 Million in Funding for the CPSC with No User Fee Authorization; Report Language Focuses on Test Burden Reduction, Import Surveillance, and Report on “Auto-Update” Mechanism for CPSC Safety Standards

Posted in Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), U.S. Congress, Voluntary Recalls

2015 Budget CPSC

Update: After some uncertainty, Congress passed and the President is expected to sign the 2015 Omnibus bill into law.

The report language of the Omnibus bill incorporated by reference House Report 113-508, which accompanied a previous appropriations bill passed by the House earlier this year. This additional report language addresses several key CPSC issues, including: import safety, the phthalates Chronic Hazard Advisory Panel, window coverings, and the agency’s proposed amendments to its regulations on voluntary recalls, 6(b) information disclosure, and certificates of compliance.

For further details about this additional report language, please read our previous post from earlier this year.

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Yesterday congressional leaders announced that they reached a deal on an omnibus bill that will fund the federal government through September 30, 2015. Included in this bill is $123 million in funding for the CPSC, which is the amount the agency requested in its 2015 Budget Request and an increase of $5 million from what the agency received in 2014.

Not included in the omnibus or other 2015 legislation, however, is statutory language authorizing the agency to collect user fees from importers of consumer products. As a part of its 2015 Budget Request released in March, the agency sought the statutory authority to collect user fees to fund an estimated $36 million in annual costs for a full-scale national import surveillance program. Currently, the CPSC’s import surveillance program is in its pilot stage and limited in scope. In May, the National Association of Manufacturers (NAM) and 40+ other trade associations wrote a letter to then Acting-Chairman Adler raising concerns about this type of user fee authorization.

Additional items of note that Congress outlined in its report language accompanying the Omnibus included: Continue Reading

More GMO Woes: Another Corn Exporter Sues Syngenta for its Failure to Isolate its GMO Corn

Posted in Consumer Product Safety, Importer Safety, Litigation

FDA Food Safety and Modernization ActLast month, Archer Daniels Midland Co. (“ADM”) joined a slew of corn exporters and other stakeholders who have sued Syngenta based on allegations that China rejected these exporters’ products because Syngenta’s genetically modified corn seed, which contains a trait that China has not yet approved for import, was not kept separate from the plaintiffs’ products.

Syngenta’s corn seed contains MIR 162, a patented genetically modified (“GMO”) trait that may protect corn crops from insect damage.  This corn is also known as “Viptera corn.”  The ADM suit against Syngenta, which was filed in Louisiana state court on November 19, alleges that Syngenta was negligent in marketing its GMO corn.

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CPSC to Discuss Draft Phthalates Rule at December 5th Meeting

Posted in Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA)

Tomorrow, December 5, 2014, the U.S. Consumer Product Safety Commission (CPSC) will be briefed by staff on a recommendation to issue a proposed rule to permanently prohibit five phthalates – DINP, DIBP, DPENP, DHEXP, DCHP – from children’s toys and child care articles.  The use of three phthalates – DEHP, DBP, and BBP – in these products is already prohibited by law.

Last week, the CPSC staff circulated to Commissioners a draft of the proposed rule as part of a briefing package.  Once the Commission has been fully briefed by staff tomorrow, a vote on whether to proceed with publication of the rule in the Federal Register is tentatively scheduled for December 17, 2014.

Senate Confirms Adler; Locks Democratic Majority at CPSC until at least October 2017

Posted in Consumer Product Safety Commission (CPSC), U.S. Congress

Senate Confirms Bob Adler USCPSCLate this afternoon the U.S. Senate confirmed current Commissioner and former Acting-Chairman Robert S. Adler to a second 7 year term as a CPSC Commissioner by a 53-44 vote. With Commissioner Adler’s confirmation, the five-member Commission will remain composed of 3 Democratic and 2 Republican Commissioners until at least October 2017—even if a Republican wins the 2016 Presidential election.

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Cloture Filed on Adler Nomination; Burgess Named Subcommittee Chairman

Posted in Consumer Product Safety, U.S. Congress

Commissioner of the Consumer Product Safety CommissionYesterday evening, Senate Majority Leader Harry Reid (D-NV) filed cloture on the re-nomination of Robert Adler to be a Commissioner of the Consumer Product Safety Commission (CPSC).  If cloture is invoked—meaning three-fifths of the full Senate, or 60 votes, supports the attempt for cloture (assuming the “nuclear option” is not used)—the Senate will proceed to vote on the Adler nomination on or about Tuesday, December 2.  The nominee is then confirmed by a majority vote.  It is worth noting that the invocation of cloture and confirmation of Commissioner Adler is not a given in the current post-election political climate and after the President’s speech on immigration reform last night.  As our readers will recall from a previous blog post, while the Senate Commerce, Science and Transportation Committee voted Commissioner Adler’s nomination out of committee in July, seven Republican Senators reportedly voted no. Continue Reading

Class Action Defense Counsel adding ‘The Pick Off’ to Their Playbooks

Posted in Consumer Product Safety, Drugs & Cosmetics, Litigation, Product Class Actions, Retailer Product Safety, State Consumer Protection Laws, State Unfair Competition Laws, Uncategorized

The Pick Off DefenseIn recent years, we’ve noticed a new maneuver that class-action defense counsel have increasingly added to their playbooks: The Pick Off.  This is how the play is run: Offer the named plaintiff(s) full relief through a Rule 68 offer of judgment and, even if the plaintiff(s) reject the offer, argue that the fact that they were offered full relief nevertheless moots the case and requires dismissal.

For reference, Rule 68 of the Federal Rules of Civil Procedure allows a defendant to “serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.”  If the plaintiff rejects the defendant’s Rule 68 offer of judgment and the judgment ultimately obtained by plaintiff “is not more favorable than the unaccepted offer,” then the plaintiff is liable for any costs the defendant incurred after the offer was made.

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CPSC Focusing on Three Areas for Reduction of CPSIA Testing Burdens

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), Federal Regulations, Manufacturer Product Safety, Private Labeler Product Safety, Retailer Product Safety, U.S. Congress

Consumer product safety testingAt their April Senate confirmation hearing, both incoming CPSC Chairman Elliot Kaye and Commissioner Joe Mohorovic pledged to Senator John Thune (R-SD) to submit plans for reducing third party testing burdens within 60 days of confirmation. Rather than send separate plans, Kaye and Mohorovic submitted a joint letter to Senator Thune recently made public on the website for the U.S. Senate Committee on Commerce, Science, and Transportation.

The letter outlines three areas of focus for the agency to reduce testing burdens: Continue Reading

A Taste of Things to Come? Whole Foods Feels Sting of “Non-GMO” Litigation

Posted in Advertising, Consumer Product Safety, Food & Drug Administration (FDA), Food and Beverage, Litigation, Manufacturer Product Safety, Product Class Actions, Retailer Product Safety, State Consumer Protection Laws

Non-GMO Labeling BadgeAs we’ve explored in past posts, mandatory GMO-labeling legislation has, at best, a spotty track record among state legislatures. Nevertheless, the GMO issue continues to draw the public’s attention, and it is becoming clear that the “Non-GMO” label now appeals to at least certain segments of the consumer base. Some companies in the food and beverage space will doubtlessly have good business reasons to capitalize on this market trend voluntarily by providing products that are labeled and advertised as “Non-GMO.”

But a recent lawsuit against Whole Foods in California illustrates the risk for companies hoping to take advantage of this market opportunity. With all the public controversy now surrounding GMOs, could “Non-GMO” become the new “all natural”—a labeling claim that is routinely challenged by private class actions?

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