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Jonathan Tabasky represents architects, attorneys, engineers, real estate brokers and appraisers, and independent insurance adjusters, among others, in negligence/professional malpractice cases. He also represents a broad range of companies in product liability and toxic tort cases including manufacturers of prescription drugs, protective clothing, fittings, heating devices, wire and cable, trucks, aircraft and turbines.

Hebrew National hot dogs with mustard and relish

Hebrew National Hot Dogs may answer to a Higher Authority, but for the time being they’ll also be answering to the United States District Court of Minnesota.  Hebrew National Hot Dogs which are owned by ConAgra Foods, Inc. has been sued in a class action Complaint (pdf download) which alleges that it utilized deceptive and misleading labeling by representing that Hebrew National hot dogs are strictly 100% kosher in violation of applicable consumer protection statutes.  The suit claims that ConAgra’s kosher meat producer, AER Services, improperly slaughtered and did not maintain the slaughter house in accordance with Kosher laws by, among other things, using knives which were nicked thus preventing a clean cut as mandated by Kosher law and by failing to keep kosher meat separate from non-kosher meat.

The suit contains causes of action for:

  1. negligence;
  2. violation of state consumer protection acts;
  3. breach of express and/or implied warranty; and,
  4. breach of implied warranty of merchantability/fitness for a particular use.

The suit further alleges that employees of AER Services raised concerns about the procedures at the slaughter house, but those concerns were dismissed and the employees were either threatened with retaliation or fired.  None of the employees are named in the suit.

Hebrew National hot dogs are certified as Kosher by Triangle K, the Kosher Food Supervision and Certification Agency which is based in New York.  Neither Triangle K nor AER Services are named as Defendants in the Complaint.  In statements, Triangle K and AER Services have all denied that the allegations.  ConAgra which successfully removed this action to Federal Court has untilJuly 13, 2012to answer.  In response to the suit, ConAgra issued a press release which states that…

for more than 100 years, Hebrew National has followed strict dietary law, using only specific cuts of beef that meet the highest standards for quality, cleanliness, and safety with no by-products, artificial flavors, or artificial colors.”

Some states have statutes which regulate the labeling of Kosher food.  See e.g., the New York Kosher Law Protection Act of 2004.  We expect the Food and Drug Administration as well as other states to issue additional regulations pertaining to such advertising given the increased production and distribution of other religiously significant food products.  Food manufacturers and distributors should follow these regulations closely, as failing to follow them can be costly.  One recent suit brought in Orange County California against Super King Market subsequently settled for $527,000.  In that suit,  Super King allegedly improperly sold generic meat as halal meat, or that which follows Islamic law.
Continue Reading Hold the relish: ConAgra under fire for allegedly misrepresenting kosher status of Hebrew National hot dogs

Co-authored by Brian Gross 

Generic Drugs

In June of 2011, the United States Supreme Court ruled that makers of generic drugs cannot be sued for failing to warn consumers of the possible side effects of their products if they copy the exact warnings used by their brand-name equivalents.  See Pliva, Inc., et al. v. Mensing, 131 S.Ct. 2567 (2011).  In Mensing, the plaintiffs took a generic form of the drug Reglan for several years, and alleged that the manufacturers were liable under state tort law for failing to provide adequate warning labels, despite mounting evidence that long term use carries a risk of tardive dyskinesia far greater than what was indicated on the label.

 The majority of the Court found that, although State law placed a duty directly on all drug manufacturers to adequately and safely label their products, federal drug regulations prevent generic manufacturers from independently changing safety labels which would add or strengthen a contraindication, warning, or precaution.

Where it is impossible to comply with state and federal law, the Supremacy Clause of the United States Constitution controls, and pursuant to the doctrine of preemption, state law must give way.  The majority distinguished the Court’s holding in Wyeth v. Levine, 129 S.Ct. 1187 (2009).  In that case, the federal law in question permitted a brand-name drug manufacturer to unilaterally strengthen its warning without prior FDA approval.

Now, for the first time, a Massachusettsjudge has applied Mensing to bar failure to warn claims arising out of the distribution of generic drugs.  See Stevens v. Community Health Care, Inc., 2011 WL 6379298 (Mass.Super.).  In Stevens, the plaintiff alleged that DAVA Pharmaceuticals, Inc., (“DAVA”) failed to adequately warn, in accordance with Massachusetts law, of the harmful interaction between the generic drug Clarithromycin and Methadone. Relying on the Mensing decision, DAVA moved for summary judgment.  Superior Court Judge Thomas R. Murtagh granted the motion, and held that, although DAVA was a distributor of the generic drug in question and not the manufacturer, it too had no ability to change labeling or warnings.  As a result, like a generic manufacturer, DAVA could not be subject to liability in connection with a state law claim premised on failure to warn theories.  In a related ruling, Judge Murtagh also rejected Stevens’ motion for leave to add Abbott Laboratories, Inc., the brand manufacturer, to the suit due to the earlier plaintiff’s strategic decision to not do so.

We predict that the Mensing decision will continue to have significant ramifications on pharmaceutical litigation in state courts throughout the United States, as only 25% of all prescription drugs dispensed in this country are brand name drugs.  If you would like to discuss these cases and their potential impact upon future litigation, please visit the Product Liability Defense page for contact information.

Continue Reading Massachusetts Court Extends Mensing to Bar Failure To Warn Claims Against Generic Drug Distributors