Angel’s Envy Lawsuit

I received a bottle of Angel’s Envy as a holiday gift two years ago. It was pretty good, as is most bourbon that doesn’t come in a plastic bottle. However, the novelty of Angel’s Envy is in its creation. According to the company’s website, Angel’s Envy Kentucky Straight Bourbon is made in small batches of eight to ten barrels at a time, which is aged for up to six years, presumably in normal casks. During the aging process, approximately 5 percent of the liquid evaporates, which is known as the Angels’ share, hence the name.   The whiskey is then finished for three to six months in port barrels “made from French oak and imported directly from Portugal.”  They also produce a Rye Whiskey which is finished in Rum casks. Nothing on the website mentions the Rye being from Kentucky.

Now Kentucky Straight Bourbon is like Champagne in that there are rules.  To be called Champagne, a sparkling wine must come from Champagne and be produced under certain rules.  To be called Bourbon, 27 C.F.R. 5 requires that bourbon made for U.S. consumption follow be produced in the United States, be at least 51 percent corn, aged in new, charred oak barrels, and various proof requirements.  For rye whiskey, the whiskey must be at least 51 percent rye whiskey, which is why bourbon is sweeter than rye whiskey.

Last year, Mario Aliano and his restaurant, Due Fratelli, Inc. filed suit against Louisville Distilling Company alleging that the company falsely advertised the product as being produced in small batches in Kentucky.  According to Plaintiffs, who have also sued Tin Cup Whiskey and Titos Vodka, Angel’s Envy Finished Rye is neither small batch, nor actually made in Kentucky.  According to Plaintiffs, the rye whiskey is made in Lawrenceburg, Indiana then finished in rum barrels in Kentucky.

While, I don’t support misleading or false advertising, I do support brown liquor.  So in my opinion, the best resolution involves someone getting a couple of free bottles of Angel’s Envy.

In Ohio, Class Action Allowed To Proceed In Target Wipes Case

Last year, Ohio’s Christopher Meta filed a class action lawsuit against Minnesota’s finest, Target. I apologize that we didn’t cover it when the news initially broke, but everyone else is too highbrow, and I was afraid that I would fall victim to an Andy Zaltzman-esque inappropriate pun run (for reference), which would stave off readers and irreparably damage our reputation here at Abnormal Use. Christopher Meta’s class action lawsuit alleges that the Target brand up&up baby wipes, which are labeled as flushable, dispersible, and sewer and septic safe, were none of the above. According to Mr. Meta’s plumber, the flushable wipes had caked together. Meta was charged $210 for the removal of the . . . products.

According to Meta’s Complaint, wipe users everywhere are suffering the same tragic fate. New York has a rather well-documented history of fighting the wipes, even going so far as having its politicians attempt to ban them (probably all Toilet Paper Lobby propaganda).

Earlier this month, an Ohio federal judge denied Target’s motion to dismiss the products liability claims in this matter. (A copy of the order is available to download). Target argued that while some of the class members experienced clogged plumbing, others did not. The district court did rule that Ohio’s Product Liability Act abrogated the plaintiff’s tortious breach of warranty, negligent design, and negligent failure to warn theories of recover. However, the court allowed the plaintiff’s four other causes of action to proceed.

We will do our best to keep abreast of this litigation. In the meantime, if you’re bold, take a gander at the plaintiff’s complaint or the photo from The New Yorker article linked above.

2015 in Recalls (So Far)

NPD Furniture Recalls 250 “Chairs”

On January 14, 2015, North Pacific Direct issued a recall  for approximately 250 Abbey Dining Chairs, which were sold from July 2014 to November 2014.  NPD issued the recall as the legs of the chairs can break unexpectedly, which poses a falling hazard.  NPD has received at least four reports of the chair legs breaking, but no injuries were reported.  If you are a proud owner of one of the 250 Abbey Dining Chairs, you may contact New Pacific Direct here to claim your refund.

Mean Green Cleaner and Degreaser Recalled for Containing Chemicals

Earlier this month, CR Brands, Inc. recalled approximately 83,800 containers of its Mean Green Super and Industrial versions of its Mean Green Cleaner and Degreaser sold between August 2014 and November 2014.  The products were recalled as they contain ammonia, which wouldn’t be an issue, except that the label says the product does not contain ammonia.  As a result, people could potentially mix the chemical with bleach, which can result in deadly vapors.  No injuries have been reported at this time.  If you have any Mean Green products, you should check the UPC and date code with those listed on the Consumer Protection Safety

Third Times the Charm: DD Brand Candles Are Being Recalled, Apparently the Wax Can Ignite

On January 8, 2015, CoScentrix expanded its recall of DD Candles to include an additional 168,000 DD brand candles sold at Hobby Lobby from June 2014 to October 2014.  I use the word expanded because CoScentrix previously recalled 256,000 candles in November 2014 and 126,000 candles in April 2014.  According to the recall, the candle’s high flame can ignite the surface of the wax, which is the reason CoScentrix originally recalled nearly 400,000 candles.  Strangely, the recall is limited only to candles sold at Hobby Lobby.  I have little to no idea of the chemical differences between the wax in CoScentrix’s candles, but it would seem that regardless of the packaging, if there is a need to recall some candles in April 2014 because the wax used can ignite (How was that not discovered during testing . . . Do they test candles?), it may be best to fix that before you sell another 400,000 candles.

Dismissal Of Fluoride-Based Case Upheld By Fourth Circuit

Disclaimer: Do not Google “dental fluorosis,” for as with every Google Image search, you are bound to discover the most graphic examples, which in this case aren’t pretty. Earlier this month, the Fourth Circuit Court of Appeals affirmed a Maryland district court’s dismissal of a case against Nestle, Dannon, and Gerber involving dental fluorosis. See Nemphos v. Nestle Waters North America, Inc., et al, No. 13-2146 (4th Cir. Jan. 8, 2015). Michelle Nemphos, as legal guardian of her child, brought suit against these defendants for allegedly giving her daughter dental fluorosis.  According to the complaint, the plaintiff’s daughter consumed Nestle’s infant formula and Poland Spring water, Gerber’s baby foods and apple juice, and Dannon’s Fluoride To Go bottled water. According to the CDC, dental fluorosis occurs when young children consume too much fluoride over long periods when teeth are still developing under the gums.  The effects can range from barely noticeable white spots (okay, you can click that one) to pitting.  Once the teeth erupt through the gums, they will no longer develop D.F., and apparently, once a child reaches eight years of age, that child can no longer develop D.F.  The CDC warns of several common sources including, as the title stated, toothpaste, if swallowed, and water and processed beverages, which can account for up to 75 percent of fluoride intake.   Among the numerous recommendations proffered by the CDC include labeling the fluoride concentration of bottled water, as such labeling would allow consumers to make informed decisions.

So what does the FDA say about fluoride in bottled water?  According to the FDA’s science wizards, like these two obviously candid scientists, the amount of fluoride in bottled water varies from .8 to 2.4 milligrams per liter of fluoride.  One of the factors used by the FDA in determining the acceptable amount of fluoride in bottled water is the annual average daily air temperature at the location where the bottled water is sold.  See why I called them wizards? The FDA does not require bottled water manufacturers to list the fluoride content on the bottle, but it does require fluoride additives, if used, to be listed.  In 2006, the FDA approved this labeling: “Drinking fluoridated water may reduce the risk of tooth decay.”

With respect to Ms. Nemphos’s case, the district court found that if it were to grant the relief sought by Ms. Nemphos, it would require the defendants to maintain fluoride levels below the FDA’s established limits (which again were set by stock photo wizards) or to contain warnings not required by the FDA. Ms. Nemphos argued her failure to warn and misleading marketing claims against Nestle and Dannon were not preempted by federal law.  To its credit, the Fourth Circuit made their its thorough history of food packaging and labeling as interesting as possible.  Essentially, the Fourth Circuit found that the Nutrition Labeling and Education Act of 1990, which contains the national uniform nutrition labeling provisions, forbids states from establishing any requirements that are not identical to federal requirements in five areas of food labeling, including “standard of identity.” Reduced to its essence, federal statutes convey significant powers to the FDA to regulate food safety. This statutory charge reflects the all-around benefits of uniform food labeling. One of the FDA’s crucial tools in its regulatory effort is the standard of identity.

Regarding the other products, the Fourth Circuit brushed off Ms. Nemphos’s argument in a much briefer fashion, stating “Nemphos’s concern thus involves the failure to warn that fluoride—even at permissible levels, without any addition by manufacturers—may contribute to causing dental fluorosis over time.”

At Abnormal Use, we encourage those over the age of eight to brush their teeth and drink water, so long as the average daily temperature where you live fits the FDA’s guidelines.  Also, if you swallow your toothpaste, stop, as that’s just weird.

Family Sues Bob Evans Restaurants Over West Virginia Food Poisoning Incident

We here at Abnormal Use have never been to a Bob Evans restaurant.  However, according to a lawsuit filed earlier this month in West Virginia federal court, two elderly West Virginians became ill and died as a result of eating meatloaf at a Bob Evans restaurant. (Source). According to the complaint, Virginia “Ginny” and Punk Starcher fell violently ill nine hours after eating meatloaf, mashed potatoes, broccoli, and a roll.  The decedents called 911, and they were allegedly told by emergency room workers that they had suffered food poisoning from consuming tainted meat from Bob Evans.  Two months later, Ginny died in hospice care and Punk passed away sometime thereafter in intensive care. Their children, Mark and Ann Starcher, sued Bob Evans Restaurants for $250,000 in medical bills and for pain, suffering, emotional distress, mental anguish, and the loss of ability to enjoy life.

As you might suspect, Bob Evans Resturants normally does not comment on pending litigation, but through, Scott Taggart, a spokesperson for the company, said that this was “an appropriate and important exception” to that rule.  While Bob Evans sympathized with the family for their loss, Taggart provided that the company had made “a thorough review of the alleged claims in this matter, and [had found] quite simply, there is no basis to the allegations contained in the complaint and the suit is entirely without merit.” We’ll be keeping our eyes on this one.

At Least It’s Not Miracle Whip – The Coming Mayonnaise Wars

In full disclosure, we here at Abnormal Use have never tried Hampton Creek’s vegan mayo-like product, Just Mayo.  However, we can almost assuredly tell you that it, like many other vegan substitutes, doesn’t taste as good as the real thing.  Traditional mayonnaise is supposedly a rather simple condiment to make: oil, egg yolks, and vinegar or lemon juice.  However, the vegan wizards over at Hampton Creek have managed to remove eggs from the process by adding other ingredients including the delicious “pea protein” and ever vague “spices.”

Last month, Hellman’s owner, Unilever, brought suit against Hampton Creek for false advertising.  According to Hellman’s Hampton Creek’s Just Mayo is not mayonnaise at all because it doesn’t have eggs.  The FDA’s really specific and not that interesting definition of mayonnaise  requires “one or more of the egg yolk-containing ingredients.”  Further down, the regulation provides that the name of the food is “Mayonnaise.”  According to Unilever, Just Mayo does not taste or perform like real mayonnaise. (link)  Therefore, according to Unilever, Just Mayo is damaging the entire mayonnaise product category, has already caused consumer deception and serious irreparable harm, and is stealing market share from Hellman’s.

While the packaging does feature a picture of an egg on the bottle, it also provides that the product is egg free.  Just Mayo is not the only vegan spread to include the mayo name, and Hampton Creek’s CEO has stated that the name just rolls off the tongue.

While this lawsuit rages on, Unilever is apparently strengthening the egg-less mayo’s brand.  Hampton Creek claims that the lawsuit has given Just Mayo nearly $21 million dollars of free advertising in the first week alone.  We will openly admit that Hampton Creek’s product is not for us, but we can’t say that we are not curious.

For a more detailed review of the lawsuit and Unilever’s claims, check out One Green Planet’s article.  Given the name of the website, we would take the article with an organic grain of salt.

Fireball Whiskey Recall Leaves a Bitter(Sweet) Taste

Flooding social media sites of late was news of the overseas recall of Fireball Whiskey. Recently, some retailers in Sweden and Finland have pulled Fireball from their shelves due to the amount of propylene glycol found in the liquor. For those who don’t know about Fireball, it’s a cheap, but delicious, sugary sweet cinnamon liquor.  Of late, Fireball has taken college campuses, tailgates, and even weddings, by storm.  Need proof? According to Bloomberg Business, in 2013, Fireball posted $61 million in sales, up from $1.9 million in 2011. While Fireball has run into an issue in the European Union, it will most likely remain available in the United States.  Here, the FDA allows for a maximum content by weight of 5.0 percent of propylene glycol in alcoholic beverages.  However, the European Union only allows for a maximum level of .1 percent in final foodstuffs.

What is propylene glycol? According to the Agency for Toxic Substances & Disease Registry, propylene glycol is a synthetic liquid substance that absorbs water and, among other things, it is a base for deicing solutions. The FDA has classified propylene glycol as an additive that is “generally recognized as safe” for use in foods.  Further, according to the FDA, there is no evidence in the available information on propylene glycol that demonstrates, or suggests reason to suspect, a hazard to the public when they are used at levels that are now current or that might reasonably be expected in future.

On its website, Fireball states that the propylene glycol has been used in more than 4,000 food, beverage, pharmaceutical, and cosmetic products for more than 50 years and that propylene glycol is used in Fireball in very small quantities, less than 1/8th the amount allowed by the FDA.  Further, according to Mr. Fireball, “all Fireball formulas are absolutely safe to drink and the use of propylene glycol in Fireball creates no health risks whatsoever.”

Therefore, while it appears that the sale of the syrupy sweet liquor may have run into some hiccups in some Nordiac countries.  It does not appear as though the supply in the United States will dry up anytime soon.  We will continue to closely monitor the situation and update as necessary.

Juggalo Lawsuit Against The FBI And DOJ Dismissed For Lack Of Standing

Earlier this year, the Insane Clown Posse and several fans sued the Department of Justice and the FBI in federal court in Michigan for designating Juggalos as a “loosely organized hybrid gang” in the 2011 National Gang Threat Assessment, which cites a National Gang Intelligence Report about the Juggalos.  Both the NGIC report and the FBI report described increasing criminal activity among Juggalos.  In its report, the NGIC noted that over the years, two sides of the Juggalo sub-culture had emerged and that there were two very different factions of Juggalos, the music fans and the criminal street gang.  IThe FBI report does not distinguish between the two factions.

According to the complaint, people with Juggalo tattoos and clothing were targeted by police and denied jobs as a result of the FBI’s report.  The Justice Department maintained that ICP and its fans lacked standing to sue because the government is not responsible for how police agencies use the information in the gang reports. Agreeing with the Justice Department, the court dismissed the lawsuit last month due to the Plaintiffs’ lack of standing.  In his opinion, U.S. District Court Judge Robert Cleland held that because “Plaintiffs complain of independent actions by third-parties who are not currently before the court” and “the court is reluctant to endorse standing theories that rest on speculation about the decisions of independent actors.”   The Court noted that the alleged discriminatory actions were performed by independent third-parties and not at the direction of the FBI or DOJ.  ICP and the Michigan ACLU have vowed to appeal the decision. To be honest, from a standing perspective, this sounds like the correct result.

Unfortunately, the actions of a small portion of a population appear to have stigmatized the entire group.  Admittedly, we here at Abnormal Use know little about the oeuvre of Insane Clown Posse or the Juggalo subculture.  We do know that they apparently sometimes wear face paint, drink Faygo, and question the power of magnets.  And now, all of  the non-violent Juggalos have little legal recourse against the feds on this issue.

(See also: Huffington Post).

Google Wiretapping Trial Moves Forward

We take for granted how the world of navigation has changed in the last twenty years.  Growing up, we would unfold enormous and unwieldy maps and attempt to plot the best way to travel around new cities.  Then, with the arrival of new technology, travelers then turned to MapQuest and printed their specific directions.  In fact, in the early 2000’s, I myself used eleven printed pages of MapQuest instructions to navigate across this great country of ours.  However, somewhere along the way, the printed pages also sank into the depths of history.  We now use apps on our smart phones to provide turn by turn directions; they update themselves in real time and provide a plethora of related information, like Google Street View.  In 2013, Google Street View cars had covered more than 3,000 cities and 6 million miles since the project began in 2007, reported CNN.  However, that level of technology and accessibility apparently comes with a price.

Recently, the U.S. Supreme Court refused to hear Google’s challenge to a lawsuit which alleged that the Internet behemoth’s Street View Cars spied on individuals by collecting personal information from private Wi-Fi networks.  The information accessed included emails, passwords, web histories, and text messages.  Google does not deny that such invasions into privacy occurred.  In fact, in 2010, Sergey Brin admitted that “[Google] screwed up” and that he “would not make any excuses about it.” Google has since blamed a rogue engineer and announced that the information was stolen “mistakenly.” In 2011, Google paid $7 million dollars and agreed to destroy the data to settle a case brought by 38 states for violating federal wiretapping laws.  The settlement did not include private actions. Recently a federal appeals court upheld a ruling that Google had indeed violated the U.S. Wiretap Act.  Apparently, Google then sought refuge in the U.S. Supreme Court, arguing that Wi-Fi networks fell within the radio signal exception to the Wiretap Act.  On June 30, 2014, without explanation, the Supreme Court declined to hear the appeal.

It remains to be seen whether Plaintiffs’ class action suit will be granted certification or whether Google can ultimately prevail on its theory that Wi-Fi networks are radio communications, which are not encompassed under the U.S. Wiretap Act.  However, it does appear that Google may get an opportunity to view the inside of a couple more courtrooms.

No Extra Snow for Arkansas; Litigation Ensues

According to the Internet, North Little Rock, Arkansas has a yearly average snowfall of just over four inches, and unfortunately for its residents, that number does not appear to be changing any time soon.  Aquapark Holdings, LLC, a company that owns Wild River Country, rented a 50-ton snow maker from SnowMagic, Inc., as it hoped to bring snow rides to the park during the 2013-2014 season.  According to Wild River, SnowMagic claimed that the 50-ton snow maker could create and maintain snow in 70 degree weather under direct sunlight.  However, in practice, Wild River found that the snow wouldn’t “stick” in 45 degree weather and turned to slush in direct sunlight.  After numerous customer complaints, “most customers did not return and, as word of the disappointing attraction spread, attendance at the snow park diminished drastically,” according to the pleadings filed by Wild River Country. Litigation started when SnowMagic brought suit against Wild River alleging that Wild River failed to play nearly half of the $215,000 bill for the equipment rental.  Wild River then counterclaimed for catastrophic damages allegedly caused by the snow maker’s failure.  Regardless of the outcome, the real victims of the litigation may be the residents of Little Rock, who will continue to be without the winter thrill. Oh, well.