Author Archives: Michael P. Luongo

Supreme Court’s Juice Decision Could Open the Door to New Litigation

Juice maker POM Wonderful manufactures 100% pomegranate juice and other juice products made primarily from the pomegranate fruit. Since its founding in 2002, the company has reached a growing market of health-conscious consumers who are willing to pay a premium for the claimed health benefits of the pomegranate fruit. In 2008, POM filed a deceptive labeling claim against a competing juice manufacturer arguing that its label, which prominently displayed the words “pomegranate blueberry” despite containing less than half of a percent of these juices, was…

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FTC Issues Guidelines to Media for Spotting False Weight-Loss Claims

In anticipation of the summer season, the Federal Trade Commission released a reference guide for media outlets to spot and restrict false weight-loss advertising claims. The FTC notes in its guide that weight-loss advertisers often use the reputation of respected media outlets as cover, and that the FTC has prosecuted hundreds of deceptive weight-loss claims. However, in order to prevent false claims from reaching consumers in the first place, the FTC is relying on media outlets to spot and prevent claims before they are aired.…

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E-Cigarette Manufacturer’s Health Claims Spark New Litigation

With traditional cigarettes becoming increasingly restricted, and the health dangers of smoking now widely known, many Americans are turning to newly popularized electronic smoking alternatives as a source of nicotine. Electronic cigarettes, or e-cigarettes, are devices that emit doses of vaporized nicotine which are inhaled by the user. E-cigarettes are intended to simulate the sensation of smoking, but because there is no actual combustion, users supposedly avoid many of the dangerous chemicals normally associated with tobacco products.  Given that e-cigarettes do not produce actual smoke,…

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FDA Postpones Affordable Care Act Menu Labeling Changes

The Patient Protection and Affordable Care Act, known commonly as “Obamacare,” established major regulatory overhauls to the U.S. healthcare system. In addition to provisions directly affecting the purchase and implementation of health insurance, the Affordable Care Act includes many reforms affecting businesses outside of the healthcare market, including language requiring all chain restaurants and other establishments with at least 20 locations to list nutritional information alongside each and every item on their menu. Consistent with this requirement, the Food and Drug Administration issued a…

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Court Rejects Federal Preemption Defense in Surgery Advice Lawsuit

On October 11, a unanimous panel of the Indiana Court of Appeals held in Medtronic, Inc. v. Malander, 2013 Ind. App. LEXIS 499 (Ind. App. Oct. 11, 2013) that federal law does not preempt a state negligence action against a medical device maker for allegedly giving a doctor bad advice during surgery. The plaintiffs filed an action on behalf of a family member who had a medical device known as a ventricular “lead” implanted after he was diagnosed with a heart condition.  The patient later…

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Safety Advocates Demand DOT Implement Rearview Camera Rule

On September 25, 2013, a coalition of consumer safety groups and parents filed a lawsuit in the Second Circuit requesting that the U.S. Department of Transportation issue a long-delayed rule requiring automakers to put rearview cameras, or other similar technology, in all new vehicles. The camera and monitor systems are intended to improve safety and reduce the number of incidents in which children are hit by vehicles backing up. The DOT originally proposed the camera requirement in December 2010, after Congress passed the Cameron Gulbransen

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NHTSA Rule Change Requires Automakers to Provide Additional Online Recall Data

Under a new rule implemented by the National Highway Traffic Safety Administration, car and motorcycle manufacturers will be required to establish an online database for consumers to search recall information for individual vehicles. Information relating to each vehicle will be required to be updated weekly. The rule, set to take effect in one year, will affect all major automobile manufacturers. The rule change follows an industry practice of several leading automakers, such as Ford Motor Co., Toyota Motor Corp. and Chrysler Group LLC

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Target Corporation Hit with Spoliation Charge

On June 27, 2013, the Wisconsin Court of Appeals ruled that Target Corporation had improperly destroyed evidence in a lawsuit involving a customer who had purchased an air mattress, but instead received a box containing harmful chemicals.  See, Cody v. Target Corp., 2013 Wisc. App. LEXIS 545 (Wisc. Ct. App. June 27, 2013).  The customer, Cheryl Cody, claimed that she had returned the box to Target and informed the company that it had made her and her family physically ill.  Despite this notice of injury,…

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Manufacturer Avoids Breach of Warranty Claims for Gifted Products

On June 3, 2013, United States District Court Judge Mark W. Bennett ruled that Abbott Laboratories could not be held liable for claims of breach of warranty for injuries allegedly caused by its Similac brand baby formula.  See, The Security National Bank of Sioux City IA v. Abbott Laboratories, 5:11-cv-04017 (N.D. Ia. June 3, 2013).  As part of its marketing strategy, Abbott had donated the product to various hospitals, including St. Luke’s in Sioux City Iowa.  In 2008, St. Luke’s provided a new mother with…

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“All Natural” Label Puts Producers of Genetically Modified Food at Risk of Liability

On May 21, 2013, the plaintiff, Adrianna Ault, filed a class action lawsuit in the United States District Court for the Southern District of New York against J.M. Smucker Co. on behalf of consumers who purchased its Crisco brand cooking oils.  According to the complaint, the company sold its product under the “All Natural” label, despite the fact that the products were heavily processed and contained ingredients derived from genetically modified crops.  The complaint further alleges that the prominent display of the “All Natural” label…

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