by Long Island Attorney Paul A. Lauto, Esq.

On August 6, 2012 we posted a blog detailing a lawsuit between Monsanto and DuPont, who were fighting it out in court over the rights to genetically modified (GM) Roundup Ready Technology.  Monsanto had sued DuPont for an alleged infringement of their patented technology and DuPont brought an anti-trust lawsuit against Monsanto alleging a monopoly.

As an update, Monsanto and DuPont have now settled their litigation matters against each other.  The settlement provides that DuPont has agreed to pay Monsanto a 1.75 billion dollar royalty over a ten year period of time.  In addition, DuPont has suprisingly agreed to drop its anti-trust lawsuit against Monsanto.  In that Monsanto controls approximately 80% of the US corn and 90% of the US soy beans, it appears that DuPont had an excellent chance of winning their ant-trust suit had they continued to pursue it.

Now that Monsanto and DuPont have resolved their differences, they present a stronger and more united front in their fight against GMO label laws in the US.  As a result, it is now more important than ever for consumers to stand up for the right to know what is in the food they buy.  Consumers are faced with a veritable "David and Goliath" like battle.  In this case, consumer success lies not in a sling shot but the passage of a full disclosure food label law.  Once that law is passed, the Monsanto giant will fall.

Long Island Lawyer
Paul A. Lauto, Esq.

by Long Island Attorney Paul A. Lauto, Esq.

Purchasing car insurance is often a very expensive and frustrating experience, with the selection process primarily driven by cost.  Perhaps that is why Progressive has invigorated its promotion of its "Snapshot" auto savings plan.  The "Snapshot" plan requires you to agree to plug a device into your car, that will monitor how "safe" you drive.  It measures the miles you drive, the time of day/night you are driving and your braking patterns.  If the data obtained indicates that you are a very safe driver, then you are eligible for up to a 30% savings on you car insurance.

On its surface this may seem like an attractive way to save money and as Progressive would have you believe, to stop paying higher premiums because of all the bad drivers on the road.  But upon closer examination, many believe that this is nothing short of George Orwell's "Big Brother" from the book 1984 come to life.  In today's technological age where privacy is at a premium, having devices in our car to monitor our moves appears to be antithetical to safeguarding privacy.  What's next, installing cameras in our homes that watch for extra hazardous activities in order to save on our homeowner insurance premiums?

In addition, many opponents argue that the "Snapshot" device cannot accurately determine whether or not you are a safe driver based on the information obtained.  That a driver could potentially pass red lights and stop signs and still be deemed a safe driver by the device.  Conversely, just because someone has to make a short stop or drive in the early morning hours because they have a night job, doesn't mean that they are not a safe driver.  Opponents also question whether or not this device poses any health risks, such as those from radiation emitted from cell phones.  

Proponents of Progressive's "Snapshot" plan, believe that this is a small price to pay in order to save money on your auto insurance.  Further, that if you truly are a safe driver, then you should have nothing to hide and should not have a problem passing the device's safe driver test.  Opponents argue that in the past if you had a safe driving record without any accidents or tickets, you were entitled to the maximum discount available.  That now under the "Snapshot" plan, it appears that the maximum discount is being withheld unless you capitulate to using a subjective device of questionable accuracy, that is tantamount to an invasion of what little privacy we have left. 

George Orwell, whose real name was Eric Arthur Blair, published his book 1984 as science fiction in the year 1949.  He died at the young age of 46 years and did not live long enough to see any semblance of today's modern world.  If he had, one can't help but think that he would reverberate the adage, "Truth is stranger than fiction".

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.

The USDA has reversed an existing regulation (9 CFR  424), which previously prohibited the use of three toxic meat and poultry preservatives.  Despite a previous ban on the use of sodium propionate, sodium benzoate and benzoic acid on meat and poultry products, these preservatives are now deemed "safe".  The USDA has changed its opinion that these preservatives were used to conceal damage and inferiority in meat and poultry products.

This change begs the question as to why the USDA would reverse this consumer protection regulation.  The reversal was prompted by intense lobbying by major companies such as Kraft Foods Global, Inc.  Kraft submitted its own company funded trials, claiming the three preservatives were safe and could not disguise inferior meat and poultry.  As a result and as announced by the FDA, the USDA changed their position.

Consumer advocates maintain that conventional cows and chickens come from highly profitable factory farms, where the animals spend most if not all of their lives in confinement.  That unfortunately this confinement and factory farm style, results in some extremely unsanitary conditions that breed disease and illness among the animals.  As a result and in order to make the product "safe" for human consumption and maintain a high profit margin, the meat and poultry is sanitized and smothered in antimicrobial agents such as sodium propionate, sodium benzoate and benzoic acid. 

Consumer advocates also maintain that sodium propionate is linked with respiratory and gastrointestinal problems, sodium benzoate promotes cancer cells and damages DNA and that benzoic acid could lead to asthma and hyperactivity especially in children.  Perhaps some day the United States will have a Department of Agriculture and a Food and Drug Administration that truly serves the best interest of people.  Until that day, be mindful of the adage professing that you are what you eat and eat organic foods.

Long Island Lawyer
Paul A. Lauto, Esq.  




  

by Long Island Attorney Paul A. Lauto, Esq.

Federal Court Judge Richard Cebull, under pressure to step down, has decided to resign his position as chief judge for the District of Montana.  In February, Judge Cebull who was originally nominated by President George W. Bush, admittedly passed along a racist anti-Obama email to seven people from his official courthouse e-mail address.  Naturally, one wonders what kind of e-mail was so bad that it caused the federal judge to resign. 

The e-mail was reportedly entitled "A Mom's Memory" and allegedly read as follows:

"Normally I don't send or forward a lot of these, but even by my standards, it was a bit touching.  I want all of my friends to feel what I felt when I read this.  Hope it touches your heart like it did mine."

"A little boy said to his mother, 'Mommy, how come I'm black and you're white?"  "His mother replied, 'Don't even go there Barack!  From what I can remember about that party, you're lucky you don't bark!' "

Judge Cebull explained his actions by stating, "The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan.  I didn't send it as racist, although that's what it is.  I just sent it out because it's anti-Obama."

Judge Cebull further stated that he is not racist and that the e-mail was private and never intended to be public.  However as a Judge, Cebull is well aware that he is ethically bound and required to avoid even the appearance of impropriety.  Notwithstanding, he disseminated this offensive e-mail which Cebull admits is racist, anti-Obama and in "very poor taste".  Like it or not, when you hold office such as Judge Cabull, one is held to a higher standard and must take extra care in all that they do.

Long Island Lawyer
Paul A. Lauto, Esq.

by Long Island Attorney Paul A. Lauto, Esq.

Consumers have effectively taken a huge step forward in their quest to know what is in the food they buy and eat.  More than 2,000 grocery food retailers across the United States have agreed to support the consumer campaign for genetically engineered (GE) free seafood, by committing to not selling genetically engineered seafood if allowed onto the market.  These retailers include Trader Joe's, Whole Foods and Aldi, among others.

This committment proves significant in light of the fact that the FDA has already stated that they are not likely to require genetically engineered salmon to be labeled.  This FDA failure to label, will be the precedent for the more than 35 other species of genetically engineered fish currently being developed.  Reportedly, genetically engineered cows, chickens and pigs are not far behind.

Meanwhile back at the "congressional ranch", the US Congress is moving forward with the passage of the 2013 Agricultural Appropriations Bill (AAB).  This bill contains a little known rider dubbed the "Monsanto Protection Act", that would effectively allow agricultural biotech companies such as Monsanto, to bypass the legal system in approving, growing and selling genetically modified seeds and crops. 

Currently, federal courts have the authority to stop the sale and planting of potentially hazardous GE crops, while the USDA assesses any such dangers.  If the Monsanto Protection Act is approved on the coat tails of the AAB, the courts would be stripped of this authority.  In doing so, it is argued that organic and non-GMO farmers would be denied equal protection under the law, especially in cases of alleged crop contamination and patent infringement. 

If approved the Monsanto Protection Act, actually named with irony as the Farmer Assurance Provision, threatens the existence and livelihood of the very farmers its name pretends to protect.  The "one step forward and two steps back" dance, between consumer protection and corporate greed continues.

Long Island Lawyer
Paul A. Lauto, Esq.

by Long Island Attorney Paul A. Lauto, Esq.

In May of 2012, a study published in the New England Journal of Medicine warned of a potential risk of heart failure associated with taking the popular antibiotic Zithromax.   The study claimed that people who take Zithromax were twice as likely to die of a heart attack or sudden cardiac event, than those people who take Amoxicillin.

Zithromax, commonly known as Z-Pack, has been prescribed for the past 20 years.  It has been popular among patients in part, due to the shortened duration required to take the pill to effectively eliminate a bacterial infection.   Needless to say, its popularity has generated huge profits for its manufacturer Pfizer.  In 2011 alone, Zithromax reportedly generated sales in excess of $450 million dollars.

The FDA was admittedly aware of the study published in May 2012 in the New England Journal of Medicine and has been "investigating" ever since.  Now almost one full year later, the FDA has issued a warning about heart related risks associated with taking Zithromax, similar to those set forth in the study published in May 2012.  In addition, the FDA has required a label change for Zithromax, to include a specific warning of heart related risks.  Although many related lawsuits have already been commenced regarding Zithromax, the recent FDA warning has effectively opened the litigation flood gates against Pfizer.

But more than Pfizer's imminent legal nightmare, the warning issued by the FDA raises some other serious questions.  If there are such heart risks associated with taking Zithromax, then why did it take 20 years  and an independent study for the FDA to become aware of them?  Why wasn't a more extensive study that would have produced these findings, conducted prior to the FDA approving this drug for sale to the very public it is designed to protect?  Is there a history of the FDA and Pfizer having "shared employees"?  Why, now that the FDA has come to believe there are serious heart risks associated with Zithromax, did it merely issue a warning and a label change instead of taking the drug off the market?

Perhaps the answer to these questions and many others, will be revealed in the litigation that is destined to follow.  Our legal system, as imperfect as it may be, strives to achieve equity and accountability.  Perhaps the time has come to hold the agency responsible for safeguarding the food and drug health of Americans, to a higher standard of care.

Long Island Lawyer
Paul A. Lauto, Esq.

by Long Island Attorney Paul A. Lauto, Esq.

An "Eleventh Hour" decision by  New York Supreme Court Justice Milton A. Tingling, has effectively stopped the NYC "Soda Ban" law from going into effect on March 12, 2013.  Accordingly, it will be business as usual in the NYC restaurant industry.

In its decision, the court stated as follows:

      "The Rule is nevertheless fraught with arbitrary and capricious          consequences.  The simple reading of the Rule leads to the earlier acknowledged uneven enforcement even within a particular City block, much less the City as a whole.  Furthermore, as previously discussed, the loopholes in this Rule effectively defeat the stated purpose of the Rule.  It is arbitrary and capricious because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentration of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the Rule, ... defeat and/or serve to gut the purpose of the Rule."

It is a virtual certainty that this decision will be appealed, still leaving the future of this law uncertain.  

Long Island Lawyer
Paul A. Lauto, Esq.

by Long Island Attorney Paul A. Lauto, Esq.

The NYC sugary drink ban will become law effective March 12, 2013.  Therefore, whether you support the new law or not, here are some highlights you should know about.

The new law for New York City, limits high sugar drinks from a fountain or prepackaged container to 16 ounces.  This includes, among others, non-diet sodas, energy drinks and fruit or sweetened drinks that are less than 50% milk or milk substitute and have more than 25 calories per 8 ounces.

The law applies  to establishments such as sit down restaurants, fast food restaurants, delis, movie theaters and stadiums.  The law does not apply to alcoholic drinks, low calorie drinks such as diet sodas, unsweetened coffee and tea or fruit juice without added sugar that is less than 25 calories per 8 ounces.  Supermarkets and convenience stores are excluded from the law.

Violators of the new law are subject to a $200 fine per incident.  Notwithstanding, there will be a grace period of three months before the law is enforced.  The law provides for a one ounce margin of error.

As detailed in our October 2, 2012 initial blog on this subject, while the new law has the admirable goal of reducing obesity, it appears too easy to circumvent and therefore unlikely to ever achieve its goal.  The validity of the law is currently being litigated, leaving the future of this new law uncertain.

Long Island Lawyer
Paul A. Lauto, Esq.

by Long Island Attorney Paul A. Lauto, Esq.

In 2012, undercover video captured Whole Foods employees ill advising customers that their products contain, "Nothing artificial ever".  This dicovery was made notwithstanding that certain Whole Food products contain GMO's and are not labeled as such.  In response, many customers abandoned Whole Foods and started food shopping with alternative companies such as Green PolkaDot Box.  

Now Whole Foods has announced that they will require GMO labels on all products by 2018.  Whole Foods maintains that their decision was based on ethical considerations and the good of their customers.  However, many believe that the decision was purely a business decision made to re-establish their reputation and customer base.  Regardless of the reason, it appears that, "the change it had to come".

Whole Foods maintains that they are the first national grocery chain to set such a deadline for its stores.  In our age of rising awareness and increased educated consumers, it is believed that in time other stores will follow.  In this single announcement, Whole Foods has delivered a decisive blow to Monsanto and the biotech industry, who appears to prefer ignorant consumers over educated ones.

While Whole Foods should be applauded for their decision, regardless of what their true motive may be, waiting 5 long years to put their plan into action is questionable.  That time frame gives Monsanto and company 5 years too many, to launch legal challenges against Whole Foods in an effort to protect their multi billion dollar industry.

The stage has been set and the consumer war to re-gain the right to know what is in the food we buy and the right to choose what food we put in our bodies has begun.   With this commendable stand by Whole Foods, consumers have effectively launched their most meaningful retaliatory defensive strike to date.  Full disclosure food label laws in the United States  suddenly appears quite feasible and no longer just a dream.

Long Island Lawyer
Paul A. Lauto, Esq.