Earlier this month, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) issued a Notice of Emergency Action to allow temporary use of a standard point-of-sale warning message for bisphenol A (“BPA”) exposures from canned and bottled foods and beverages. This emergency rulemaking came only three weeks before California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”) warning requirements for BPA becomes effective on May 11, 2016. Several days later, OEHHA also added styrene to the Proposition 65 list as a known carcinogen.


Continue Reading Mark Your Calendars: BPA Prop 65 Warnings Required as of May 11, 2016; Styrene Also Added to the Prop 65 List

Last week, FDA finalized new food safety regulations seeking to ensure the sanitary transport of human and animal food, as required under the Food Safety Modernization Act (FSMA). The final Sanitary Transportation of Human and Animal Food Rule will affect shippers, loaders, carriers, and receivers of food transported by rail or motor vehicle in the United States. Among other sanitary controls, the rules will require that vehicles are adequately cleaned, designed to maintain safe temperatures, and operated by personnel trained in sanitary transportation practices and documentation.  Most affected entities will have a one-year compliance deadline, with smaller businesses getting an additional year.

As our readers may know, this Final Rule is the sixth of seven “foundational” rules being promulgated by the Agency under FSMA, the massive food safety overhaul law enacted in 2011.  Interestingly, unlike the other major FSMA rules, this one originated in a 2005 law called the Sanitary Food Transportation Act – Congress reminded the Agency to follow through on those mandates through a provision in FSMA.  Continue Reading A Decade Later, Rules for the Sanitary Transportation of Food Finally Finalized by FDA

There have been many twists and turns over the past four years concerning the CPSC’s regulation of certain high powered, rare-earth magnet sets and its litigation against various entities selling these magnets.  In the latest chapter of the magnets saga, a federal court in Colorado has permanently enjoined Zen Magnets (Zen) from selling magnets purchased from another distributor, Star Networks USA (Star Networks) who later recalled them to settle administrative litigation with the CPSC.

It is illegal to resell previously recalled products under the Consumer Product Safety Act (CPSA).  Zen asserted the products were “fungible commodities” and it had taken them out of the scope of the prohibition by repackaging and rebranding them.  In a victory for the CPSC, the court disagreed vehemently and ordered Zen to recall the magnets.  The court reasoned as follows: Continue Reading Federal Court Makes No Exceptions for “Commodity Products” and Orders Zen Magnets to Stop Selling Previously Recalled Magnets

On March 11, Health Canada announced that it had assessed administrative monetary penalties under the Canada Consumer Product Safety Act (CCPSA) against company Orange TKO Industries (Orange TKO or the Company) of Calgary.  According to Health Canada’s press release, Orange TKO failed to comply with an order of the Minister of Health to recall an all-purpose cleaner that did not meet labelling and child-resistant packaging requirements for consumer chemical products.  This news is highly noteworthy as it is the first civil penalty known to us levied by Health Canada pursuant to Section 49 of the CCPSA.  Although Health Canada, unlike the CPSC, does not have the statutory authority to assess civil penalties for late-reporting violations, it does have the ability to penalize companies for failing to comply with other provisions of the CCPSA, including failing to comply with the Ministry’s orders.

Continue Reading Health Canada Assesses Monetary Penalties against Company under Canadian Product Safety Act for First Time

Auburn Courthouse Prop 65Recent attempts to modify California’s Safe Drinking Water and Toxic Enforcement Act of 1986, Proposition 65, have been the work of the California Legislature.  (See A Sane Tweak To Proposition 65 and California Reenters the GMO Food Labeling Arena – This Time Through The Legislature).  This past week, however, the California Appellate Court for the First District in Environmental Law Foundation (ELF) v. Beech-Nut Nutrition Corp., 2015 B.L. 72035, (Cal. Ct. Ap., No. A139821, 3/17/15) upheld a trial judge who determined, after entertaining extensive expert testimony, that low levels of lead in products including baby food, fruit juice and packaged food do not produce exposures that trigger a requirement for warnings under Proposition 65.

The Beech-Nut case is one of the few situations where a Proposition 65 plaintiffs’ group has had to litigate what triggers a requirement for warnings under the law.  In this case, the court held that the manufacturers met their burden of proof.

Underlying Action:

Continue Reading California Appellate Court Takes on Proposition 65 Warning Triggers

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.

Starbucks and CERTIn April 2010, the Council for Education and Research on Toxics (CERT) sued Starbucks Corp. and other coffee sellers alleging they violated California’s Safe Drinking Water and Toxic Enforcement Act, passed by California voters in 1986 as Proposition 65, by failing to warn consumers about carcinogens in their products as required under the act.  In July 2013, Los Angeles Superior Court Judge Elihu M. Berle denied CERT’s motion for summary adjudication, saying the lawsuit would essentially boil down to a battle of experts.

Since then, the battle of the experts has continued to brew.  We are now a month into the bench trial that will culminate in Judge Berle’s ruling on the three affirmative defenses asserted by Starbucks and several other defendants: Continue Reading Battle of the Experts Still Brewin’ in Starbucks Trial

Throughout the year, this space has periodically re-visited the topic of regulating the manufacture and labeling of foods with genetically modified ingredients (GMOs) at the state and federal level.  This week, a lawsuit out of Kauai, Hawaii shed light on the fate of these regulations at the county level.

Continue Reading Hawaii G-M-O: Kauai County GMO Regs Struck Down in Federal Court

Last week, the California Supreme Court granted review of Ramos v. Brenntag Specialties, Inc. to resolve a split in the Second Appellate District regarding the application of California’s component parts doctrine.  The component parts doctrine stands for the proposition that a company that manufactures component parts cannot be sued under a strict liability theory for a finished product that incorporates its component.

The rationale for not imposing liability on suppliers of product components is a matter of public policy:  such suppliers generally do not participate in developing their component products into finished products for consumers.  Imposing liability on these suppliers would impose a burden on them to closely examine buyer-manufacturers’ processes and final end products in order to ameliorate the suppliers’ potential legal exposure, despite the fact that buyer-manufacturers are in the best position to ensure product  safety.

Continue Reading California Supreme Court Considers Component Parts Doctrine

In April, we wrote about the Vermont legislature’s approval of a bill that would require manufacturers to change the retail labels of certain foods to indicate that they are GMO.  On May 8, 2014, Vermont enacted the final version of this bill, now Act 120, which requires manufacturers to make these changes by July 1, 2016.  On June 12, 2014, Grocery Manufacturers Association (“GMA”), along with the Snack Food Association, International Dairy Foods Association, and National Association of Manufacturers, challenged Act 120 in a complaint filed in the District of Vermont (5:14-CV-117) against various Vermont state officials, including the Governor, the Attorney General, and the Commission of the Vermont Department of Health.

Continue Reading Grocery Manufacturers File Suit Against Vermont Over GMO Law