by Long Island Attorney Paul A. Lauto, Esq.

In the Matter of Norse Energy v. Town of Dryden, the Appellate Division upheld town zoning ordinances barring hydraulic fracturing.  Fracking or hydraulic fracturing is the controversial process of extracting natural gas from shale rock layers deep within the earth.  The process entails, among other things, deep drilling that frees gas from within the rock by injecting wells with high pressured water that is laced with toxic chemicals.  Opponents maintain that the process contaminates the water supply, impairs the health of local residents and is damaging to the environment.  Proponents maintain that the process is a safe and effective  method to tap into an unused energy source.

In the court's decision Justice Karen Peters stated, "While the Town's exercise of its right to regulate land use through zoning will inevitably have an incidental effect upon the oil, gas and solution mining  industries, we conclude that zoning ordinances are not the type of regulatory  provision that the Legislature intended to be preempted by the [Oil, Gas and  Solution Mining Law]."  

Norse Energy argued that NYS Environmental Conservation Law 23-0303(2) superceded all local laws and ordinances relating to the regulation of the oil, gas and mining industries.  The court rejected this argument, finding that the Town ordinance did not regulate but rather established permissible and prohibited uses of land within the Town.  The court concluded that, "We find nothing in the language, statutory scheme or legislative history of the
statute indicating an intention to usurp the authority traditionally delegated
to municipalities to establish permissible and prohibited uses of land within
their jurisdictions. In the absence of a clear expression of legislative intent
to preempt local control over land use, we decline to give the statute such a
construction."  Norse Energy respectfully disagreed with the court's decision and plans to appeal.

Long Island Lawyer
Paul A. Lauto, Esq.  

by Long Island Attorney Paul A. Lauto, Esq.

The Environmental Law Foundation (ELF) is going to trial against baby food giants Gerber Products Co., Beech-Nut Nutrition Corp, Del Monte Foods and others, for failing to provide warning on their food labels that their baby food contains lead.  ELF maintains that defendants' failure to warn consumers of the lead contents in the baby food, is violative of California Proposition 65.  In support of defendants, the FDA stated that they have tested the alleged offending baby foods and have concluded that they contain levels of lead that are an "acceptable risk".

According to the Center For Disease Control (CDC), more than 500,000 children in the United States suffer from lead poisoning.  Excessive exposure to lead in children is widely believed to cause brain damage and low IQ, among other problems.  That is one of the main reasons why lead was removed and banned from house paint in 1978.  Gerber maintains that the lead is "naturally occuring" and cannot be prevented.  ELF proponents maintain that no level of lead poisoning is safe for our children and that even if the lead was "naturally occuring", it should be removed before selling the baby food. 

It seems that in today's society, there are innumerable acts of toxicity performed for pecuniary gain under the veil of "acceptable risk".  The Judge in this case will have to decide just how "acceptable" the levels of lead are and if they require a label warming,   Perhaps the real issue that should be decided, is whether or not it should be legal for companies to include toxic ingredients such as lead in our baby food in the first place. 

This case is just another glaring example of how desparately we need full disclosure food label laws in the United States.  There are far too many governmental agencies designed to protect the American people, that have become corporate puppets.  "We the people" need to protect ourselves more than ever when it comes to our food arena.  If you wish to avoid the ramifications of the toxic pitfalls in our food, consider the following:

    1.  Read all ingredients carefully and make sure you understand what is in the food you are buying.    
    2.  Buy U.S. certified organic food whenever possible.
    3.  Refuse to buy products from food companies that do not support the consumer's right to know what is in our food.
    4.  Demand that your grocer supply foods with full disclosure labels on the food they sell.
    5.  Teach your children to appreciate the health significance of what is in the food they eat.

Long Island Lawyer
Paul A. Lauto, Esq.

by Long Island Attorney Paul A. Lauto, Esq.

In 2011 class action lawsuits were filed against Pepsico and Kellogs, as parent companies for Naked Juice and Kashi, for allegedly mislabeling certain products as "All Natural".  In essence, the suits allege that the defendants lied to consumers by deliberately mislabeling Naked Juice and Kashi products as being completely natural  and GMO free, when they instead are plentiful with synthetic chemicals.

Defendants motions to dismiss the cases have now been denied by the U.S. District Court.  Accordingly, the litigation of these cases will now proceed to the discovery stage where all information and documentation relevant to the claims will be revealed and obtained.  This case is similar in nature to Stewart v. Beam Global Spirits and Wine, Inc., as detailed in our July 20, 2012 blog (See www.liattorney.com/scales-of-justice.html).  In that case, defendant was sued for labeling Skinny Girl Margarita drinks as "All Natural" when they allegedly contained chemical preservatives.  The court in that case also refused to dismiss plaintiff's claim and allowed the case to proceed.

These consumer rights cases represent the reasonable expectation that labels will accurately represent the contents of products.  A simple concept in and of itself, unfortunately has been made complicated in today's age of greed and misrepresentation.  Perhaps consumers now have a need to not only read labels, but to question and verify them as well.   

Long Island Lawyer
Paul A. Lauto, Esq.

by Long Island Attorney Paul A. Lauto, Esq.

Alfred Caronia, a big pharma sales representative, was previously found by a lower court to have violated the federal Food and Drug Cosmetic Act in his off label promotion of the drug Xyrem.  Although the drug Xyrem is approved by the FDA for narcolepsy, Caronia promoted the drug for off label uses including muscle disorders, fatigue and chronic pain.  As a result of his unlawful promotion, Caronia was sentenced to one year probation and 100 hours of community service.

Upon appeal, the 2nd circuit Court of Appeals in NY reversed the lower court decision.  In explaining the basis for the reversal Judge Chin stated that, "In the fields of medicine and public health, where information can save lives, it only furthers the public interest to ensure that decisions about the use of prescription drugs, including off label usage, are intelligent and well informed."  Judge Chin continued to state, "The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good." 

Unfortunately, the court appears to be selectively enforcing First Amendment rights to prescription drug manufacturers, as the same rights do not apply to natural supplement manufacturers.  Under current law any supplement or even food that purports to have any kind of health benefit, is reclassified as a "drug".  In accordance with such reclassification, that supplement or food becomes subject to the same multi-million dollar FDA approval process required for prescription drugs.  Accordingly, food and supplement manufacturers have little recourse except to remain silent as to the health benefits of their product.

Inarguably,  improper usage or overuse of natural supplements, as with prescription drugs, may be dangerous to your health.  However, when our founding fathers crafted the First Amendment, their intent and purpose behind the guarantee of free speech was that it was to be applied equally.  If the equal application of free speech to food and supplement manufacturers was not an issue before Judge Chin to rule upon in the within case, then that omission is one than should be rectified by the courts in a separate case.   Unfortunately, to do so would be to go against Big Pharma's grain and therefore is unlikely to happen anytime soon.

Long Island Lawyer
Paul A. Lauto, Esq.

by Long Island Attorney Paul A. Lauto, Esq.

In a landamark ruling, the Italian Supreme Court concluded that cell phone radiation can cause brain cancer.  The court found causation between a man's heavy work related cell phone use and a brain tumor he developed.  As a result of the court's finding, it was determined that the man was entitled to receive worker's compensation benefits.  This decision potentially opens the door of success, for world wide lawsuits regarding this previously hotly contested issue.  

In 2011, the World Health Organization's International Agency on Research for Cancer classified cell phone radiation as "possibly carcinogenic" to humans.  This classification came after the Interphone study found that using cell phones for only 30 minutes or more per day, resulted in a 40% increased risk for a glioma brain tumor and a 96% increased risk if the phone is used predominantly on the side of the head.  

On June 15, 2012, the Federal Communications Commision (FCC) submitted a proposal to reevaluate cell phone radiation emission standards.  The last time cell phone radiation emission standards were evaluated was in 1996 and are therfore considered outdated to say the least.  Perhaps the new evaluation will finally acknowledge that technology often wields a double edged sword. 

Long Island Lawyer
Paul A. Lauto

by Long Island Attorney Paul A. Lauto, Esq.

A Federal Court recently ruled in favor of the Obama Administration, effectively reinstating the detention provision of the National Defense Authorization Act (NDAA).  The provision gives the president the authority to indefinitely detain anyone (including American citizens), based on a suspicion of involvement with a terrorist group.  This ruling overturns the lower District Court decision striking down the provision, as overly broad and violative of equal protection and due process rights. 

The recent ruling was made by a U.S. Court of Appeals for the 2nd Circuit, comprised of three judges appointed by President Obama.  Co-sponsor Senator Carl Levin (D) explained in a December 2011 speech, that;

"The language which precluded the application... to American citizens was in the bill that we originally approved... and the administration asked us to remove the language which says U.S. citizens and lawful residents would not be subject to this section. ... It was the administration which asked us to remove the very language the absence of which is now objected to."

Many opponents to the NDAA provision, including groups such as the American Civil Liberties Union (ACLU), argue that it violates due process, equal protection and flies in the face of the very Constitution upon which our country is based.  Many people question whether or not the age of terrorism in which we are compelled to live in, justifies the effective personification of "Big Brother".  Ironically, the USCA ruling characterized the lower District Court's decision as unconstitutional.  

by Long Island Attorney Paul A. Lauto, Esq.

In what is being hailed by many as a historic decision, Monsanto has been found liable for the chemical poisoning of a farmer by a French court.  In 2004 a 47 year old farmer sued Monsanto for chemical poisoning, that he claimed to have received after cleaning his sprayer tank equipment.  The farmer used Monsanto's Lasso weedkiller formula, which contained the active ingredient Alachlor.   It was alleged that the Alachlor caused the farmer lifelong nerve damage, persistent memory loss, chronic headaches, a speech impediment and rendered him permanently occupationally disabled.  

The court found Monsanto negligent in failing to provide proper and adequate warning of exposure dangers on the Lasso packaging.  The farmer's lawyer maintains that this is the first time that a pesticide manufacturer has been found liable for such type of poisoning.  According to the U.S. Environmental Protection Agency (EPA), exposure to Alachlor may cause damage to the liver, kidneys, spleen and eyes and may even cause anemia and cancer.  In fact, the EPA apparently determined Alachlor to be so hazardous that it set the Maximum Contaminant Level Goal (MCLG) at zero, in order to "prevent potential health problems".  

In 2007, France officially banned Lasso in accordance with a European Union (EU) directive enacted in 2006, prohibiting the chemical from being used on crops.  Despite the EU prohibition and all of the known potential dangers from Lasso, the chemical is still being used on conventional crops throughout the United States to this very day.  The court has yet to determine the amount of compensation Monsanto will be required to pay the farmer.

Long Island Lawyer
Paul A. Lauto, Esq. 

by Long Island Attorney Paul A. Lauto, Esq.

by Long Island Attorney Paul A. Lauto, Esq.

In the case of Stewart v. Beam Global Spirits & Wine, Inc., plaintiffs allege that Skinny Girl Margarita products are falsely marketed as "all natural", in that they contain a chemical preservative.  Accordingly, plaintiffs have asserted a claim that defendant has unjustly procured financial gain to the detriment of the consumer, known as unjust enrichment.  

The Federal Court in the case has recently determined that under New Jersey law, plaintiffs may assert a claim for unjust enrichment against the product manufacturer, even though the product was purchased from a third party retailer.  The Court stated as follows:

     "This Court is of the view that it would be inequitable to suggest that the Beam defendants can insulate themselves from liability on an unjust enrichment claim simply by asserting that retail sales by liquor stores cut off any relationship between the consumers and manufacturer.  This is particularly true in this case where plaintiffs cannot seek a remedy directly from the liquor stores based on misrepresentations allegedly made by the Beam defendants themselves as to the 'all-natural' nature of Skinny Girl Margarita."

The chemical preservative contained in the Skinny Girl Margarita products is sodium benzoate, which is an inexpensive mold inhibitor used to extend a product's shelf life.  Sodium benzoate is reportedly a potentially toxic synthetic preservative that deprives cells of oxygen, thereby breaking down the immune system and making one more susceptible to disease.

Long Island Lawyer
Paul A. Lauto, Esq.

by Long Island Attorney Paul A. Lauto, Esq.

The Appellate Division has reversed a lower court finding of negligence against the Hudson Valley Mall, in the late night stabbing death of a Ground Round restaurant manager.

The attack occurred when Ground Round manager Sharon Inger was closing the restaurant on June 4, 2006.  A disgruntled co-worker returned to the restaurant and stabbed Inger 33 times resulting in her death.  Plaintiff alleged that the mall was negligent in failing to take and have appropriate security measures in place at the mall.  After a lower court finding of negligence against the mall, the Appellate Division reversed finding that the mall took adequate security measures.   The court concluded that the mall was not obligated to have security cameras outside the restaurant and had no duty to police the restaurant's interior.  

This Appellate Court decision is notwithstanding a history of criminal activity at the mall, including an incident one year prior when a gunman opened fire at the mall with an assault rifle.  Has justice been served?  Post your comment today.

Long Island Lawyer
Paul A. Lauto, Esq.