The rise in food labeling litigation

Law prof Nicole Negowetti has written Food Labeling Litigation: Exposing Gaps in the FDA's Resources and Regulatory Authority. Here is the abstract:

Since 2011, consumer advocacy groups and plaintiffs have filed more than 150 food labeling class action lawsuits against food and beverage companies. According to a recent study, the number of these consumer protection class actions brought in federal court climbed from 19 cases in 2008 to more than 102 in 2012. The majority of these cases have been filed in the U.S. District Court for the Northern District of California, now referred to as the “Food Court.” This surge in lawsuit filings has led some legal commentators to suggest that “food is replacing tobacco as the new regulatory and class action target.” This “unprecedented surge” of deceptive labeling and advertising lawsuits against the makers of products such as Naked Juice, Fruit Roll-Ups, Bear Naked Granola, and Wesson Oil, reveals a trend of regulation by litigation — that is, a turning over of food labeling issues to the courts in light of a lax regulatory system. Although the Food and Drug Administration (FDA) is charged with regulating food labeling, plaintiffs’ attorneys are seeking to fill a void in the FDA’s regulatory authority and enforcement of food labeling laws. This paper provides an overview of the recent food labeling litigation and explores the reasons for this flood of litigation. However, this paper does not evaluate the merits of the lawsuits. Although none of these food labeling lawsuits have yet been adjudicated, the litigation has exposed problems with the FDA’s regulatory oversight of food labeling. The lawsuits represent attempts by consumer groups and plaintiffs’ attorneys to influence marketing behavior of food companies — a task more properly undertaken by the FDA.

Copyright exemption for research on cars

The Hill reports:

The Librarian of Congress on Tuesday clarified that researchers can tinker with software embedded in cars to investigate security flaws without running afoul of copyright law. 

The decision was handed down from the Copyright Office as part of a triennial review that exempts certain activity from the Digital Millennium Copyright Act (DCMA), a section of which bars people from bypassing technologies that protect copyrighted work. 

Advocates pushing for the exemption charged that current copyright law has the potential to chill independent research into security flaws at a time when vulnerabilities are more prevalent than ever. They also say current law might have prevented researchers from finding Volkswagen's deceptive emissions software earlier.

The full article is here.

Public Citizen reports on “The Fiction of the ‘No-Injury’ Class Action”

An overview, from Public Citizen's press release:

Corporations and their lawyers are pushing the idea that consumers who were duped by misrepresentations into buying products or overpaying for products have suffered “no injury.” The new report (PDF), “The Fiction of the ‘No-Injury’ Class Action,” examines that claim, testing its validity as a matter of fact and law. The report finds that, in the cases highlighted in recent testimony by corporate counsel, the consumers experienced real injuries, and the same kinds of injuries that the law has traditionally allowed people to go to court to redress – not only in consumer cases, but also in other areas of the law.

Read the full report here, and the press release here.

New Role for Yelp: Reporting Low Health Inspection Ratings for Restaurants

by Paul Alan Levy

The Washington Post reports this morning that Yelp has begun, on an experimental basis, to show a warning sign when a restaurant has been visited by local inspectors and received an especially low food safety score.

Does Coke = happiness, or just 10 packets of sugar?

For a possible answer, click here or on the embedded video below.

 

World Health Organization raises cancer concerns about processed meat

Reuters reports:

Eating processed meats like hot dogs, sausages and bacon can cause colorectal cancer in humans, and red meat is also a likely cause of the disease, World Health Organization (WHO) experts said.

The review by WHO's International Agency for Research on Cancer (IARC), released on Monday, said additionally that there was some link between the consumption of red meat and pancreatic cancer and prostate cancer.

The new report classifies processed meat in the same category as tobacco in terms of cancer risk, and estimates that daily consumption of 2 slices of bacon (however tasty) raises your cancer risk 18%.

Read the Reuters coverage here.

Fertility Bridges' Use of a Nondisparagement Clause to Bully Dissatisfied Customers

by Paul Alan Levy

New Jersey resident Nadiya Oliver was deeply frustrated by her experience with an Illinois company called Fertility Bridges, which sells services connecting couples that are unable to conceive a child on their own with women who are ready to donate their eggs in return for financial assistance with the resulting burdens.  After searching the Fertility Bridges web site, identifying what appeared to be an ideal donor, and receiving confirmation from Fertility Bridges that the donor had confirmed her willingness to proceed, Oliver wrote a large check to Fertility Bridges.  However, as soon as the company had received Oliver’s payment, Fertility Bridges went dark concerning the donor's availability instead of moving forward with an egg donation. Then, just after Oliver’s check had cleared, Fertility Bridges admitted that the donor was unwilling to go forward with the procedure, without giving any reason, and suggested that she choose another of the company's available donors.  But when Oliver asked for a refund of the entire fee that she had paid Fertility Bridges, the company temporized for a while, and then refused.  In the circumstances, Oliver suspected that she had been the victim of a bait and switch. 

Fertility Bridges’ Invocation of Its Non-Disparagement and Mediation Clauses

Oliver took her complaints about Fertility Bridges to the Better Business Bureau, and in response received a threatening email from Fertility Bridges:

    "You directly violated our legal agreement by attempting to post an online review. As such, we are setting the plans in motion for a multi-million dollar defamation case against you.  . . . unless you withdraw your unwarranted BBB complaint or any illegal online reviews, we will proceed at lightening [sic] speed in a defamation case against you to minimize as much damage as possible. We have your signed legal agreement clearly stating you will NOT post online reviews."
    

Sexism and guidelines for breast cancer screenings

Read this op-ed on that topic by Marisa Bellack. Here's a short excerpt that gets at her theme:

There was a 19th-century echo in the American Cancer Society’s announcement this past week of revised guidelines for breast cancer screening. Whereas anxiety was once a reason for aggressive medical intervention, it is now invoked to avoid intervention — an argument that is both patronizing and unscientific. There may be good reasons for women in their early 40s to forgo regular mammograms, but this isn’t one of them.

Class of egg donors argues that guidelines on payments constitute illegal price fixing

The New York Times reports:

In a federal lawsuit, a group of women are challenging industry guidelines that say it is “inappropriate” to pay a woman more than $10,000 for her eggs. The women say the $10,000 limit amounts to illegal price-fixing, and point out that there is no price restriction on the sale of human sperm. A federal judge has certified the claim as a class action, which will most likely go to trial next year.

The guidelines do not have the force of law, though they have been widely followed. But demand for eggs has increased and put pressure on their price. So some high-end fertility clinics and egg-donor agencies are ignoring the guidelines and paying far more — on rare occasions in the six figures — while donors are shopping around to get the best price.

The $80 million egg-donation market continues to evolve, the Times explains. There is some evidence suggesting the guidelines are ignored. But the lawsuit still raises questions about the fairness of a guideline for egg donors that was set based on the prevailing rate for sperm donors, increased for the higher proportion of time spent to donate an egg -- a calculation that ignores the pain and health risk to the egg donor.

Read the story here.

Economists consider what a tax on the top tier could achieve

The NYT points out that even a hike of a few percent on the ultra-rich could yield massive returns. For instance:

If the tax increase were limited to just the 115,000 households in the top 0.1 percent, with an average income of $9.4 million, a 40 percent tax rate would produce $55 billion in extra revenue in its first year.

That would more than cover, for example, the estimated $47 billion cost of eliminating undergraduate tuition at all the country’s four-year public colleges and universities . . . .

The article also notes that "most mainstream economists" agree that cutting taxes would leave a budget gap rather than paying for itself.

Finally, the article is worth a read for its informative chart breaking down incomes and taxes by income quintile as well as a further breakdown of the top quintile to show how dramatically the top incomes dwarf the rest.

Check it out, here.