by Marion Nestle

Currently browsing posts about: Lawsuits

Dec 10 2021

Weekend reading: The Farmer’s Lawyer

Sarah Vogel.  The Farmer’s Lawyer: The North Dakota Nine and the Fight to Save the Family Farm.  Bloomsbury, 2021.

This book comes with an impressive collection of blurbs from the likes of Willie Nelson, Dan Barber, Ricardo Salvador, and Fred Kirschenmann, and, fittingly, with one from John Grisham on the cover because much of the book reads like something out of one of his thrillers.

The book tells two stories, both amazing.

The first is how Vogel, as a young lawyer, filed a class-action suit representing small farmers who had been treated terribly by a USDA agency, the Farmers Home Administration.  This agency started during the Great Depression as a way to help small farmers survive from year to year through loans and other measures.

But early in the Reagan years, the agency switched to treating farmers harshly, quickly foreclosing on unrepaid loans, garnishing bank funds, and forcing the farmers off their land—in violation of the agency’s own rules.  Most of the book is about how Vogel took on these cases, pursued them carefully, and, incredibly, won.

The second story is about the personal cost of this case to Vogel, who worked without pay during the years this litigation was in the works.  Without a salary, she couldn’t keep up her own mortgages, lost two houses, and lived hand to mouth.

It’s hard to believe anyone would take on a case like this at such risk, but the book is also about her dedication to a cause she deemed too important to abandon.

The book is packed with legal details but so well written and is so compelling that I could hardly put it down.

And the good guys won!

For that alone, the book is inspirational.  And I love the way she ends it.

The North Dakota Nine had small to midde-sized farms.  In the 1980s, their lives were very difficult.  In today’s economy, they wouldn’t have a prayer.  But farmers like them are exactly the kind of farmers we need today: farmers who will love their land, grow crops as well as communities, plant trees, care for their animals, and leave the earth better than when they found it.  In the big picture, farmers like them can help solve global warming, revitalize the countryside, and provide abundant, healthy food…We can save farmers, protect the environment, solve the hunge crisis, and rebuild rural and urban economies from the ground up…if we act soon.

Yes!

Jerry Hagstrom did a review of this book a couple of weeks ago on his Hagstrom Report.  Here’s his list of resources:

Nov 10 2021

Are law suits against food companies “frivolous?”

I am not a litigious person and much prefer to stay out of the legal system.

But I am a big fan of Bill Marler, who represents victims of food poisonings, not least because his lawsuits against companies with sloppy food safety procedures should encourage them to clean up their processes.

I’m not sure what to think of NPR’s account of Spencer Sheehan’s 400 or so lawsuits against food companies for misleading labeling.

The one that triggered off the article is on behalf of a woman suing Kellogg over the number of strawberries in Strawberry Pop-Tarts.

Russett’s complaint alleges that Strawberry Pop-Tarts contain more pears and apples than strawberries, and that the amount of strawberry they contain “is insufficient not merely to provide the nutrient benefits of strawberries but to provide a strawberry taste.” According to the suit, Kellogg uses “vegetable juice for color” and “paprika extract color” to give Strawberry Pop-Tarts their vivid red coloring.

This sent me right to the ingredient list (my emphasis).
Enriched flour (wheat flour, niacin, reduced iron, vitamin B1 [thiamin mononitrate], vitamin B2 [riboflavin], folic acid), corn syrup, high fructose corn syrup, dextrose, soybean and palm oil (with TBHQ for freshness), sugar, bleached wheat flour. Contains 2% or less of wheat starch, salt, dried strawberries, dried pears, dried apples, leavening (baking soda, sodium acid pyrophosphate, monocalcium phosphate), citric acid, gelatin, modified wheat starch, yellow corn flour, caramel color, xanthan gum, cornstarch, turmeric extract color, soy lecithin, red 40, yellow 6, blue 1, color added.
This is a classic ultra-processed food product.  The first ingredient—these are in order of highest to lowest amounts—is wheat flour, followed by three kinds of sugars, palm oil, more sugar, and more flour—basically a mix of sugar, flour, and palm oil.  After that come ingredients in tiny amounts, among them dried strawberries, number not specified.
At issue:  Does this product deserve to be labeled as strawberry?   Sheehan thinks not.

Some of his other cases:

Keebler and Betty Crocker and others over “fudge” cookies and baking mixes that contained no milkfat.

Frito-Lay alleging it didn’t use enough real lime juice in its “hint of lime” Tostitos.

Coors suggesting its pineapple-and-mango-flavored Vizzy Hard Seltzers are sources of Vitamin C “nutritionally-equivalent” to actual pineapples and mangos.

Snack Pack pudding — advertised as “made with real milk” — actually made with fat-free skim milk.

Many cases targeting vanilla products — soda, soy milk, yogurt, ice cream — that use synthetic vanilla or other flavors alongside or in place of the more expensive natural vanilla.

NPR says

Most of Sheehan’s suits, including the strawberry Pop-Tart cases, allege damages based on the so-called “price premium theory,” which says that products are sold at higher prices than they would have otherwise commanded had the companies marketed them honestly.

Are these cases frivolous or in the public interest?

I’m for anything that gets the makers of ultra-processed foods to advertise them for what they are, not for what they aspire to be.

Hat tip to Lisa Young for sending this one.

Sep 12 2019

FoodNavigator-USA’s articles on food litigation

Food law used to be so boring that hardly any law schools taught anything about it.  Now it’s a hot topic.  To understand why, take a look at FoodNavigator-USA’s collection of articles, titled Food in the dock: Food & beverage litigation 

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Oct 18 2018

Who is suing whom? Food politics lawsuits

FoodNavigator-USA has collected its recent articles on food industry lawsuits.  As it puts it,

There have been hundreds of class action lawsuits directed against food and beverage companies in the past five years, spanning everything from added sugar, ‘natural’ and ‘healthy’ claims, to glyphosate residues, and alkaline water claims. We take a look at some high profile cases, some emerging hot topics from Non GMO claims to a new wave of kombucha lawsuits, and what’s coming up from the FDA, from plant-based ‘milk’ labeling guidance to a fresh look at ‘healthy’ and ‘natural’ labeling.

I’ve organized these into categories.

GMOs

Warnings about chemicals in foods

Compliance with labeling and health claims requirements

And here’s a more recent one from CBS News:

  • LaCroix ingredients: Lawsuit alleges “all natural” claim is falseLaCroix sparkling water is facing a lawsuit alleging its claims of “all natural” and “100 percent natural” are misleading because…”Testing reveals that LaCroix contains a number of artificial ingredients, including linalool, which is used in cockroach insecticide.”

And here’s one more from CSPI (an October 24 addition):

  • CSPI sues Jamba Juice: its juices, CSPI charges, are made from cheap concentrates as well as fresh fruit.

Addition, December 11

Jun 13 2017

Pink Slime again: The lawsuit

Remember “pink slime” the pejorative name for what BPI (Beef Products International) much prefers to call “lean, finely textured beef (LFTB),” so much so that it is suing ABC News under South Dakota’s “disparagement of agriculture” or food libel law.

This is not a joke.  BPI is suing for $1.9 billion in damages and this could go to $5.7 billion under South Dakota’s Food Product Disparagement Act.

The New York Times recounts the history of pink slime and reminds us that Michael Moss won a won a Pulitzer Prize for an article in which he mentions it in 2010.

I am riveted by Dan Flynn’s account of the trial in Food Safety News.

May 30:  The trial opens, with ironic timing.

But the BPI vs. ABC lawsuit is going forward just as demand is also coming back for LFTB, two years after depiction of the product in the media as “pink slime” put consumer pressure on retailers and restaurants to pull the product.Now, however, many of those same restaurants and retailers fear losing their customers for beef patties because they cost too much. LFTB, produced by both BPI and Cargill, is in demand to keep hamburger prices down.

June 5:  The jury trial begins.

At issue is whether the the network and its reporter violated South Dakota’s Agriculture Food Product Disparagement Act. If it did, any award won at trial  could be tripled under the Act — to as much as $5.7 billion in this case. The jury will have to decide if the network and its reporter defamed the product known within the meat industry as lean finely textured beef by repeatedly referring to it as “pink slime” in numerous reports beginning in March 7, 2012.

June 8:  BPI’s chief witness testifies.  She is professor Mindy Brashears, director of the International Center for Food Industry Excellence at Texas Tech.

She told the jury that BPI’s lean finely textured beef (LFTB) is meat, is beef, is nutritious and is entirely safe to eat…In the past four years, Brashears said, she not only examined everything she could find about BPI, but also conducted her own studies. Her time on the project totaled 1,250 hours and BPI paid her a private consulting rate of $250 an hour for a total of about $335,000.

June 9:  ABC’s lawyer,  Dane Butswinkas, starts his cross-examination

Butswinkas did get the professor to admit BPI was suspended from the National School Lunch Program on multiple occasions in 2007 and 2008. Brashears said those suspensions were essentially voluntary actions by BPI taken after pathogens were discovered in its product by the lab working for the lunch program. She said the action was consistent with BPI’s food safety plan.

I have a long-standing interest in this case, dating back to 2009 when I first started writing about it.

I will continue to follow this trial with great interest.  Most lawyers I know think that food libel laws will not hold up in court.  Let’s see what this jury says.

Jan 5 2017

Coca-Cola and ABA sued over misleading science

The Center for Science in the Public Interest sent out a press release yesterday to announce a lawsuit filed on behalf of the nonprofit Praxis Project.

The complaint says Coca-Cola and its trade association, the American Beverage Association (ABA), mislead the public when they trash the science linking sugary drinks to obesity, type 2 diabetes, and the like.

It cites the August 2015 account in the New York Times of Coca-Cola’s funding of the Global Energy Balance Network, which aimed to shift attention from poor diets as a cause of obesity to lack of physical exercise.  Coca-Cola spent $120 million on research from 2010 to 2015 that could cast doubt on evidence linking health risks to sugary drinks.

It also cites quotations from officials of Coca-Cola and the ABA and researchers they fund “making false and deceptive statements about sugar-sweetened drinks.”  For example:

  • Coca-Cola’s senior vice president, Katie Bayne, claims that “[t]here is no scientific evidence that connects sugary beverages to obesity.
  • “Simply put, it is wrong to say beverages cause disease,” the ABA stated in another release.
  • One of the scientists funded by Coca-Cola, Dr. Steven Blair, stated that “there is really virtually no compelling evidence” that sugar drinks are linked to the obesity epidemic.

The complaint also charges that Coca-Cola paid dietitians to promote sugary drinks; it quotes one dietitian who suggested that an eight-ounce soda could be a healthy snack, like “packs of almonds.”

It will be interesting to see how this lawsuit fares.  Stay tuned.

Dec 12 2016

Food-Navigator-USA’s special edition on food labeling and litigation

This is one of FoodNavigator-USA’s special edition collections of articles on similar themes, in this case food labeling and lawsuits over labeling issues.  These are a quick way to get up to speed on what’s happening from a food industry perspective .  FoodNavigator introduces this collection:

Food and beverage companies have faced a tsunami of false advertising lawsuits over the past five years. But how big of an issue is this for the industry, who has been targeted, and what strategies are working, both for plaintiffs and defendants in these cases? In this special edition, we also look into labeling issues and trends, from healthy, Paleo and grass-fed claims to NuTek’s potassium salt petition.

May 6 2016

Weekend reading: Jennifer Pomeranz’s Food Law

Jennifer L. Pomeranz.  Food Law for Public Health.  Oxford University Press, 2016.

I’m told that food law is the hottest area in legal education right now.  At a time when law schools and lawyers are struggling, food law offers opportunities.  Food issues are so controversial that they constitute a full employment act.

Jennifer Pomeranz is my colleague at NYU.  Her book could not be more timely, and I was delighted to give it a blurb:

If you want to know how laws and regulations affect what you eat, how those laws are made, and why they cause so much controversy, Food Law for Public Health is a terrific place to start.