Federal Court Finds Issue of Fact on “Artificial Flavor” Label — Partially Grants Class Certification

Recently, the United States District Court for the Southern District of California granted partial certification to a class-action suit filed over alleged false advertising based primarily upon the labeling of “artificial flavors” in beverages manufactured by defendant Ocean Spray Cranberries, Inc. The plaintiff claimed that the labels on certain juice-based beverages falsely stated “No . . . artificial flavors” when in fact the beverages contained artificial flavoring chemicals (malic acid and fumaric acid) that simulate the advertised fruit flavors.   The plaintiff was seeking to certify a class consisting of all California citizens who purchased one of twelve different Ocean Spray products, for personal use and house use and not for resale, in California from January 1, 2011 until the date class notice is disseminated. A central issue in dispute over ...
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Employer/Employee Relationships Under Medical Marijuana Laws

I’ve recently been on a kick writing about Missouri’s recent passage of State Constitutional Amendment Two legalizing the use of medical marijuana within the state. Past posts discussed some of the specifics of the law and some of the problems that may develop when Missouri, like other states, has problems with conflicting federal laws (Second Amendment and gun ownership). Continuing on my Missouri kick as they are one of the more recent states to legalize medical marijuana, I thought we’d next address another thorny topic – employment issues. As some of you will recall from earlier posts, different states have VASTLY different approaches to employers’ rights when it comes to their employees’ valid use of medical marijuana. In Noffsinger v. SSC Niantic Operating Company LLC, 2017 WL 3401260, the Connecticut ...
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“Medicine Chest of the World” Joins Fight Against Opioid Epidemic

New Jersey has joined the long – and growing – company of states and local municipalities in the fight against the opioid epidemic.  The New Jersey attorney general filed suit against Janssen Pharmaceuticals, alleging that the company misled consumers on how addictive the long term use of their opioid products were. The lawsuit by New Jersey represents a new frontier in the opioid epidemic as the state brings legal action against one of its biggest employers.  New Jersey has a deep relationship with the pharmaceutical and biotechnology industry as the state was once home to several pharmaceutical manufacturers. According to the New Jersey attorney general, Janssen pushed Nucynta and Nucynta ER as safer alternatives, despite this being inaccurate. The complaint argues that Janssen should repay New Jersey for money residents ...
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Medical Marijuana and Guns (Still) Don’t Mix…For Now

A few weeks back, we discussed the issues Maryland faced now that it legalized medical marijuana – specifically, gun ownership.  As most of you know by now, federal law bars federal firearm licensee’s from selling firearms to persons who utilize medical marijuana.  Under the Federal Gun Control Act, 18 U.S.C. 922(d)(3), it is unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).  Since cannabis is still a Schedule I substance under federal law, a federal firearm licensee is barred from selling a firearm to a medical marijuana user.  ...
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Federal District Court Judge Orders Disclosure of Opioid Market Share Data

An Ohio Federal District Court judge just recently granted an Order in the multi-district national prescription opiate litigation for release of the market share data, from a federal database, of opioid sales to counties and other entities. Specifically, the Order requires production of reports derived from the U.S. Department of Justice, Drug Enforcement Administration’s Automation of Reports and Consolidated Orders System (ARCOS). This court-ordered release of information shall include: (1) manufacturer reports reflecting the names of all labelers who manufactured and/or labeled more than five percent of the market share of opioids distributed in the relevant county or county-equivalents; (2) distributor reports reflecting the name of each distributor who distributed more than five percent of the market share of opioids distributed in the relevant county or county-equivalents; and (3) pharmacy ...
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Cannabis Emerges as the Winner of the Midterm Elections

The biggest winner of the midterm elections may not have been any particular party, but rather the cannabis industry. The outcome largely reflected the continuing shift of public acceptance towards the legalization of cannabis. Once the dust settled, Michigan became the first state in the Midwest to legalize recreational use of cannabis, while Missouri and Utah joined the states that have legalized the plant for medical use. In addition, nearly half of the newly elected governors previously voiced their support for legalization to varying degrees. With the resignation of former Attorney General Jeff Sessions – who previously expressed his desire to prosecute the commercial sale of cannabis under federal law – the “green wave” continues its momentum forward. In sum, 10 states allow for the recreational use of cannabis, 33 ...
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FDA Offers Guidance for Mandatory Food Recalls

The U.S. Food and Drug Administration (FDA) recently issued guidance to the “industry” and FDA staff as to mandatory food recalls and providing integral information on how to handle and/or implement such food recalls when necessary. This guidance expands upon the FDA’s mandatory food recall authority that was first enacted under Section 423 of the Federal Food, Drug and Cosmetic Act (FD&C Act), which was added by Section 206 of the FDA Food Safety Modernization Act of 2011 (FSMA).  The FDA’s mandatory food recall authority went into effect when FSMA was enacted on January 4, 2011.  Before FSMA was enacted, the FDA relied primarily on the manufacturers to voluntarily recall the food products at issue.  The guidance further outlines that the types of foods that are subject to the mandatory ...
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Will Missouri Become the Next State to Legalize Medical Marijuana – Part II

On November 6th, 2018, Missouri voters will decide whether or not the use of medical marijuana to treat approved conditions becomes legal. There are three marijuana initiatives on the ballot – Constitutional Amendment Two, Constitutional Amendment Three and Proposition “C”. A vote for “Yes” on any of the three ballot initiatives would legalize medical marijuana. Each initiative has differences and we previously discussed Amendment Two in our last post. Today we focus on Amendment Three. Amendment Three proposes to legalize marijuana for medical purposes; tax marijuana sales at 15 percent; and spend tax revenue to establish and fund a Biomedical Research and Drug Development Institute to research cures for cancer and other diseases and oversee state’s medical marijuana program. Enact cultivation taxes on marijuana flowers ($9.25 per ounce) and on ...
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Keep Your Hands Inside the Hayride: E. Coli Outbreak in Utah linked to Fall Festivities

Utah public health officials are investigating a marked increase in E. coli infections this fall that seem to correspond with visits to petting zoos, corn mazes, and hayrides. Although the exact source has not been identified, several of the 20 cases of E. coli infections were reported following visits to these popular autumnal attractions. Since October 1st, twenty cases of Siga toxin-producing E. coli have been reported in the Central and Southwestern regions of Utah. The infected individuals range in age from 10 months to 71 years old.  Six people were hospitalized, but no deaths have been reported. This number of cases is a marked increase from the average 13 cases of E. coli reported in Utah in October for the past five years. The Utah Department of Health is working with ...
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Which Gate Do I Enter? Expert Admissibility Standards Far From Uniform

  In August, the New Jersey Supreme Court released its opinion in In Re: Accutane Litigation, which as fans of expert-admissibility standards will know essentially moved New Jersey into the column of states that apply a Daubert-based test, rather an a Frye-based test, in evaluating the admissibility of scientific and expert testimony. For anyone who has not yet seen the opinion, a copy can be found here. (Note – it is lengthy, so get a full cup of coffee before you sit down to digest it.) Last week, however, the Supreme Court of Florida took the opposite step, and declared – contrary to the will of the Florida Legislature – the courts in Florida would not follow a Daubert-based test, but would instead follow Frye. A copy of that opinion ...
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