California Federal Court Permits Class Action Pet Food Lawsuit to Go Forward

A California Federal Court recently denied a motion filed by a pet food manufacturer (Defendant) to dismiss a proposed class action lawsuit centered around the alleged presence of heavy metals within the defendant’s pet food. The plaintiffs alleged that the defendant made actionable false, misleading, or otherwise deceptive statements regarding the nature and qualify of their pet food. The defendant is facing similar lawsuits in other jurisdictions, which focus on the presence of heavy metals within these pet food products. In these other lawsuits, cases have been dismissed, with courts finding that the plaintiffs failed to establish the level of heavy metals found in the food was actually harmful to pets. The defendant asserts this same defense in the California claim at issue – arguing that heavy metals in its pet food ...
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Medical Cannabis and the Potential for Criminal Charges

This past Monday, February 4, 2019, a medical cannabis patient in Utah plead guilty to a Class B misdemeanor for possession of a controlled substance. The patient had a quantity of CBD oil in his trunk. He used that oil as medicine to treat epilepsy. However, the patient purchased the oil in Oregon and it contained small amounts of THC, though not an intoxicating amount. Oregon allows its CBD oil to contain small amounts of THC. Utah does not allow the presence of THC in its CBD oil.  The patient was arrested following a car crash and charged with a traffic infraction and the Class B misdemeanor mentioned above. He suffered a seizure while driving and after police arrived they found the THC-laced CBD oil in his car. The patient was required to pay a ...
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Hydroponic Operations Fight for Organic Certification Amidst Disapproval from Traditionalists

Hydroponic agriculture is a cutting edge method of growing plants and produce in nutrients which have been dissolved into flowing water. Hydroponic operations have historically fought an uphill battle in their quest to achieve organic certification. In most other developed nations, hydroponic crops cannot be certified as organic, as they are not grown in soil. Between 2001 and 2010, this issue was repeatedly raised to the National Organic Standards Board, which continually held that soil-less systems were inconsistent with organic status, even if they use only substances permitted in organic production. Hydroponic operations continued to petition and register comment regarding the standards. Finally, in 2014, the USDA Agricultural Marketing Service (AMS) stated that “organic hydroponic production is allowed.” This was not the end of the battle. In a Jan. 25, ...
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Litigation is the Pits – Claim Dismissed for Injuries Caused by Natural Food Substance

“A lady bit down on a pit in an olive …” may sound like the opening line to a bad joke, but the defendant she sued for her injuries appears to have had the last laugh. The plaintiff filed a personal injury claim against the defendant in California state court for products liability and pursued theories of strict liability, negligence and breach of an express written warranty.  This claims arises from plaintiff’s purchase of several cans of “Lindsay’s Large Pitted Olives” that she planned to serve during a party.  The plaintiff alleges to have taken an olive from the platter she prepared, bit down on the olive once, and felt her tooth crack on the pit of the olive.  During her discovery deposition, the plaintiff testified she had no idea ...
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FDA Resumes Inspections of Certain Foods during Government Shut Down

FDA Commissioner Dr. Scott Gottlieb announced this week that he was requesting furloughed federal employees to return to work and resume inspections of certain high-risk foods. Typically, the FDA conducts about 160 food inspections per week. Inspections have been halted since the federal government shut down and 40% of the FDA’s workforce was put on furlough. Dr. Gottlieb stated that he hoped that several hundred workers would return without pay to resume inspections of foods such as soft cheeses, seafood, some fruits and vegetables, baby formula, and unpasteurized juices. About one-third of all of the FDA’s food inspections are for high risk products, and the FDA typically inspects about 8,000 food plants in one year. Dr. Gottlieb sought and received permission from the White House and Congress to call the ...
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Crisis in Construction: Increased Risk of Opioid Abuse in the Construction Industry

The Centers for Disease Control and Prevention (CDC) states that, on average, 130 Americans die every day from an opioid overdose. The construction industry, in particular, has been disproportionately impacted by the opioid epidemic. According to North America’s Building Trades Union, the overdose rate for workers in the construction industry is seven times that of the general population. But why? The work is physically intensive and the risk of suffering a work-related injury is higher than the national average in other occupations. Laborers tend to have limited job security and minimal benefits, such as sick leave, which often prevents them from seeking help for their pain or for their addiction. Workplace culture also plays a role. On many construction sites, prescriptions are readily passed amongst and between co-workers. The “tough-guy” ...
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Crossing (State) Lines

Since 2014, New York has made medical cannabis available to individuals suffering from a variety of conditions under the Compassionate Care Act.  However, in order to obtain medical cannabis, a patient must be certified by a medical professional licensed in New York.  Now, two states have decided that open lines of communication (and sales) should be allowed.  On January 2, 2019, the Arkansas Department of Health announced it planned on issuing registry identification cards by February, following a meeting by the Medical Marijuana Commission where commissioners plan to award the state’s 32 dispensary licenses.  This follows Oklahoma’s Marijuana Authority issuance of more than 33,000 patient licenses since June 2018.  Following the approval of medical cannabis in Oklahoma the state reported that residents of Arkansas (and other states with state-issued medical ...
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A New York State of Mind (on Cannabis)

Since 2014, New York has made medical cannabis available to individuals suffering from a variety of conditions under the Compassionate Care Act.  If recent news articles are to be believed, New York State is looking to legalize adult use cannabis early in 2019.  New York would then join the ranks of other states legalizing adult use such as Colorado, Massachusetts and California in allowing adults over the age of 21 to purchase and use cannabis. It will be interesting to see what the final adult use program will look like when presented to New York.  There are numerous issues that require very careful thought.  These include the number of licenses to be issued for growers, processors and dispensaries.  Will New York continue to require that all grow facilities be contained ...
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Gingerbread House of Horrors: FDA Issues Warning Regarding Raw Cookie Dough

This week, the FDA and CDC issued a warning reminding holiday bakers to lay off the raw cookie dough. While most are aware that raw eggs used to make cookie dough or cake batter can contain salmonella, the FDA also noted that flour is a raw food product that has not been treated to kill germs such as E.Coli. Earlier this year, boxes of Duncan Hines cake mix were recalled after salmonella was detected in a box of Classic White Cake Mix in Oregon. It may have been linked to five case of salmonella infection across three states. In 2016, 63 people were sickened due to a rash of E. coli infections linked to raw flour. If the products had been fully cooked as directed, these infections could potentially have ...
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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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