Common Law - The FindLaw Consumer Protection Law Blog

July 2010 Archives

Apple Sued Over 'Overheating' iPads

It seems that Apple has found itself in a little game of hot potato.

The company is the subject of yet another class action lawsuit, this time filed in Oakland, California in federal court. The lawsuit claims that the iPad quickly overheats under common weather conditions, and even overheats indoors. The suit states that the iPad "does not live up to the reasonable consumer's expectations created by Apple."

Apple is the world's most valuable technology company, but has recently been under a swarm of lawsuits over its devices and company practices. This case is Baltazar v. Apple Inc., 10-03231, U.S. District Court, Northern District of California (Oakland) and alleges that in direct sunlight the tablet quickly turns off, often after only a few minutes of use, according to appleinsider.com.

Like the iPhone and iPod, the iPad is designed to shut down and display a warning message when it overheats. However the lawsuit alleges that the shutdown happens so frequently that the device cannot be used in the manner in which it was advertised. In light of this, the lawsuit alleges unfair business practices, fraud, deceptive advertising, breach of express or implied warranty, negligent misrepresentation, intentional misrepresentation, and unjust enrichment. There are too many claims to dig into all of them, but let's take a quick stab at deceptive advertising.

Deceptive or false advertising is "any advertising or promotion that misrepresents the nature, characteristics, qualities or geographic origin of goods, services or commercial activities." A successful plaintiff has to prove five elements:

  1. a false statement of fact has been made about the advertiser's own or another person's goods, services, or commercial activity;
  2. the statement either deceives or has the potential to deceive a substantial portion of its targeted audience;
  3. the deception is also likely to affect the purchasing decisions of its audience;
  4. the advertising involves goods or services in interstate commerce; and
  5. the deception has either resulted in or is likely to result in injury to the plaintiff.

In this case, the plaintiffs claim that Apple advertised that the iPad can be used just like a book and is capable of being used outdoors. However, they contend that the device does not in fact work as advertised. For example, users have complained that they cannot take it to places like the beach or other outdoor locations on a warm day. By contrast, Ars Technica reports anecdotal evidence that the iPad works even in the heat; after testing it for four hours at about 82°. Ultimately, it will end up being a question for a judge or jury, if it ever makes it that far. Most lawsuits settle before ever reaching trial.

Apple has not returned calls seeking comment over the class action lawsuit.

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CitiBank Acknowledges Security Flaw in iPhone App

This week CitiGroup issued a report warning users of their iPhone app that security loopholes allowed their data to be stolen by third parties.

The iPhone app, iTunes 11th most popular app contained a security flaw that stored data to a remote file on the smartphones internal memory. Citigroup noticed this flaw and notified customers about a week ago.

By exploiting the flaw, hackers could access person information including security codes, account information, transaction details and other sensative data. However, so far, there have not been any confirmed reports of data being accessed by third parties. "We have no reason to believe that our customers' personal information has been accessed or used inappropriately by anyone," said the financial group in a statement.

Citigroup suggested that users update their app or download their new updated app designed to correct the flaw. Security experts call this type of risk "leakage," when users confidential data gets saved by wireless applications on smartphones and computers. Problems such as these are part of a growing issue with online security. As technology grows more and more consumers opt to share sensitive data online. "Most consumers and app developers don't know what is happening in their apps, because it is moving so fast," John Hering, chief executive of mobile security provider Lookout said to the Wall Street Journal.

It is difficult to completely keep your data from being stored online and in mobile applications and even even without the Internet, security risks are a part of life. However, it is advisible to remember to take standard precautions when sharing sensative information online such as:

  • Using complex passwords
  • Never sharing passwords
  • Never sending passwords by insecure methods such as email
  • Using anti-virus software
  • Avoiding accessing sensitive information from public wifi hotspots

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Medical Devices Send 70,000 Kids to the ER Each Year

More than 70,000 children are sent to the ER each year for injuries relating to medical devices. While this may not sound like something most people should be concerned with, please note the most common medical device causing injury to kids: the contact lens. Nearly one fourth of the problems caused by the lenses were often preventable health issues such as infections and eye abrasions.

But according to a report by the Associated Press, other problems were also reported by the researchers at the Food and Drug Administration as well. Common causes of injury to kids included puncture wounds from hypodermic needles breaking off in the skin while injecting medicine or illegal drugs; ear tube infections in young children and skin tears from pelvic devices used during gynecological exams in teen girls.

The results of this study could result in researchers looking further into determining how the injuries occur and how much they may also affect adults. The AP reports these efforts could result in FDA device warnings, depending on what they find, said study co-author Dr. Brock Hefflin.

As might be expected, more serious injuries and infections were discovered in children with implanted devices such as brain shunts for those with hydrocephalus (water on the brain); chest catheters for cancer patients receiving chemotherapy at home; and insulin pumps for diabetics. The AP reports only 6 percent of patients overall had to be hospitalized.

Dr. Steven Krug, head of emergency medicine at Chicago's Children's Memorial Hospital, said the study highlights a trade-off linked with medical advances that have enabled chronically ill children to be treated at home and live more normal lives.

The researchers studied medical records from ER visits reported in a national injury surveillance system. The AP reports that based on data from about 100 hospitals, researchers estimated that 144,799 medical device-related complications occurred during 2004 and 2005. This adds up to the 70,000 plus complications per year.

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'Jailbreaking' Phones Granted DMCA Exemption

Have you ever had the urge to jailbreak your phone? Perhaps millions have done it. But Apple has been contending that it is illegal.

So what’s wrong with jailbreaking your phone? Nothing, ruled the U.S. Librarian of Congress on Monday. Jailbreaking is the practice of changing the software on smartphones, to allow outside applications to function on the phone. The Library of Congress found that jailbreakers should be exempted from prosecution under the Digital Millennium Copyright Act (DMCA). Every three years, The Library of Congress determines if there are any types of works that can be exempt from certain parts of copyright law.

Acording to James H. Billington, Librarian of Congress, jailbreaking is not copyright infringement "where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset."

The Electronic Frontier Foundation, a San Francisco-based civil liberties group, successfully argued that users should be permitted to install legally gained outside software for personal use. Apple, maker of the top selling iPhone, and the iTunes store, argued against the exemption, unsuccessfully contending that an exemption would increase piracy and create undue financial hardship for the company. Apple argued that its support department already receives "literally millions of reported instances of problems flowing from jailbroken phones.”

"The Copyright Office and Librarian of Congress have taken three important steps today to mitigate some of the harms caused by the DMCA," Jennifer Granick, EFF's civil-liberties director, said, reported CNET.com. "We are thrilled to have helped free jailbreakers, unlockers, and vidders from this law's overbroad reach."

Billington also announced other situations where DMCA exemptons apply and it is legal to bypass copy protection without breaking copyright laws, including:

  • Copying short clips from DVDs for use in education or noncommercial videos.
  • Unlocking firmware or software to run on another wireless carrier.
  • Breaking protection on video games when required to test for, investigate or correct security issues.
  • When required do to obsolete software security dongle.
  • In limited situations when e-books do not allow read aloud functions.

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Nap Nanny Recall Announced by CPSC

The Nap Nanny, made by Baby Matters, has been recalled after an infant death was reported. The Nap Nanny recall involves recliners, designed for sleeping, resting and playing. They pose a risk of danger, including death by entrapment, suffocation and fall. The recalled recliners were sold at retail stores nationwide and online, including at www.napnanny.com, from January 2009 through July 2010 for about $130.

The U.S. Consumer Product Safety Commission joined with Baby Matters to announce the voluntary recall of 30,000 Nap Nanny baby recliners. According to reports, an infant died after being found in her Nap Nanny harness hanging over the side of the product. The infant was caught between the Nap Nanny and the crib. The girl was 4-months old and lived in Royal Oak, Michigan.

According to the CPSC and Baby Matters, the recliners are should not be used in a crib and should always be placed securely on the floor away from any other products.

The CPSC and Baby Matters are also reported another incident where an infant became entrapped in a crib when using the Nap Nanny. In that case, the infant suffered a cut to the forehead after falling over the side of the Nap Nanny. Though the baby was harnessed in, the infant became stuck between the Nap Nanny and the side of the crib.

In total, SPSC has received 22 reports of injuries to infants caused by the Nap Nanny.

For more information, contact Baby Matters toll-free at (888) 240-4282 between 9 a.m. and 5 p.m. ET Monday through Friday or visit the firm's website at www.napnanny.com/recall

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Suit over Vitaminwater Will Proceed

Jelly beans, Coke, vitaminwater. These three items all have something legal in common. A U.S. District Court in Brooklyn, New York ruled against a Coca-Cola company move to dismiss the case against it for misleading health claims on bottles of its vitaminwater beverages. The suit against the beverage giant was brought by public watchdog group the Center for Science in the Public Interest as well as individual consumers in part over the company's use of the word "healthy" to describe its vitaminwater product.

According to Reuters, Judge John Gleeson found Coke's claims about the health benefits of its vitamin water products may violate the FDA's "jelly bean rule." The jelly bean rule prohibits food producers from labeling what is essentially junk food as healthy just because it has been fortified with vitamins. The rule restricts claims that use the word "healthy" to suggest that a food, because of its nutrient content, may help consumers maintain healthy dietary practices. It may be possible that vitaminwater does that, Judge Gleeson found.

The judge also noted that other components of the drink's labeling might prove confusing to consumers. "The potential for confusion is heightened by the presence of other statements in vitaminwater's labeling, such as the description of the product as a 'vitamin enhanced water beverage' and the phrases 'vitamins+water = all you need' and 'vitamins+water = what's in your hand', which have the potential to reinforce a consumer's mistaken belief that the product is comprised of only vitamins and water," the judge wrote.

"Vitaminwater is no more than non-carbonated soda, providing unnecessary added sugar and contributing to weight gain, obesity, diabetes, and other diseases," said CSPI's litigation director, Steve Gardner, told UPI. "We look forward to representing all Americans whom Coke has deceived."

The Coca-Cola company contends that the ingredients, including the amount of sugar in each drink, are plainly listed on the label.

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As discussed in prior posts, the city of San Francisco has recently passed a law requiring all retailers of cell phones to post the SAR levels of each phone. The specific absorption rate, or SAR, is the amount of radiation absorbed by the body when the phone sends a signal to the network. In June, the San Francisco Board of Supervisors passed the "cell phone right to know" ordinance affecting all retailers within the city. On July 23, a cell phone industry trade group known as CTIA filed suit in U.S. District Court.

According to the Associated Press, the CTIA believes the law will mislead consumers into believing some phones are safer than others based on the SAR numbers. The suit also claims the city in stepping into an area of regulation reserved for the FCC. "Nobody should be suggesting to consumers that they ought to be shopping for phones based on a difference in SAR values," John Walls, vice president for public affairs at CTIA, told the AP. "There's no scientific basis to suggest, as the ordinance does, that two phones with different values have a safety distinction between them," as long as they're below the FCC's limit.

Outside of San Francisco, consumers have to go to the FCC website to find the SARs for each phone available in the U.S. The San Francisco law is the first of its kind to make that information available at the point of purchase. Under the law, larger chains will have to place SAR notices starting in February, while other stores will have until 2012.

In an attempt to hit the city where it hurts - in the wallet - the CTIA is looking for another venue for its annual trade show. It usually holds the show in the fall, but this year it plans to take its business to another city. "We thought it was a clear message from the mayor that we weren't wanted there," Walls said.

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99 Cents Only Store Sued for Price Hike

A very small price hike has amounted to a pretty big problem for the 99 Cents Only Stores. The west coast retailer is facing two potential class action suits in Los Angeles County Superior court over the price hike. It seems that at most consumers didn't realize a fractional price increase of .99 cents was now included in their "99 cent" price.

The Los Angeles Times reports that some customers felt duped over the tiny price increase. Since it is not possible to pay a fraction of a penny in U.S. currency, anything in the store priced at 99.99 cents will actually cost consumers $1 plus tax at the cash register. "If they call themselves 99 Cents Only, it should be 99 cents," Dan Callahan, an Orange County lawyer, told the Times.

Callahan goes on to say that before filing suit, he did some research. In a survey of 99 Cents Only store customers, he found that almost no one realized they were actually being charged more than 99 cents for an item. "The people who go to that store are typically lower income or seniors, so the people they're taking advantage of are the ones least able to discern the difference and least able to afford it," Callahan said.

The suits are asking for class action status and claim a currently unspecified amount of damages. The complaints allege unfair and deceptive business practices and misleading advertising.

Eric Schiffer, chief executive of 99 Cents Only, says the company did nothing wrong. He believes they did everything they could to let their customers know about the price increase. "We changed all the signs, we have a large poster in the window of every store explaining the increase, we put it in our ads in the newspaper, we put it on the radio," he said.

According to the Times, 99 Cents Only opened its first store in Los Angeles in 1982 and has since expanded to about 275 locations, mostly in California but also in Nevada, Arizona and Texas.

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American Airlines Sued over Lost Bag Fee

Nobody likes having to pay an extra fee for their checked bag when flying. And no one is happy when an airline loses their luggage. So it is no wonder that a Danielle Covarrubias, a Seattle woman, is quite upset after American Airlines lost her luggage and then refused to refund her checked bag fee. Covarrubias was traveling in May from Seattle to Grand Rapids, Michigan when her baggage was lost. She is suing American Airlines after it allegedly denied her a $25 refund of her baggage fees. Her attorneys are seeking class action status.

"...companies have forgotten about customer service," Covarrubias said in a statement. "When American charges a fee for a baggage service it should deliver your bag, unharmed, or give you a refund."

Tom Parsons, who runs BestFares.com was interviewed by WHEC in Rochester, New York. He points out that in American’s conditions of carriage, its contract with customers, it states that they are liable for up to $3,300 in luggage, nothing more. “It doesn't say, by the way, if we lose your luggage, we'll also throw in the $20 or the $50 you paid us to lose that bag."

However whether it is in the contract or not, it has some screaming bloody murder. Generally, if you pay for a service, you are entitled to receive the service or you get a refund. It simply doesn't seem right that you still have to pay for checked baggage if it never arrives. Further confusing the issue, American Airlines spokesman Tim Smith said that the carrier already allows claims for refund of the fee:

We already do allow customers to include a checked bag charge refund request in their baggage claim if they file one for other damages and the claim is accepted for full or partial payment, said Smith.

If that is in fact true, it could have an impact on Danielle Covarrubias case. It is unknown as to whether she filed a claim for a refund of her baggage fees. Covarrubias suit against American Airlines is for $5 million.

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TIDE Trial on Avandia Put on Hold by FDA

A new clinical trial on the drug Avandia has been halted. The FDA is asking GlaxoSmithKline to halt the enrolment of new participants in its study until researchers can be brought up to speed on the controversial drug's risks. Last week, an advisory committee for the FDA found that the drug Avandia, used to treat diabetes, did cause an increase in heart risks.

The FDA advisory committee reviewed the risks associated with Avandia with an eye to recommending pulling it from the market. As noted in a prior post, the final decision was to allow the drug to stay on the market, but the panel did recommend to the FDA that the Avandia label should include a warning about the increased chance of heart attack.

GSK has said in a statement that it would stop the recruitment for the study, called the TIDE trial. The company has also said it will update the study's chief investigators, but will permit those patients already committed to continue to participate. The focus of the TIDE trial is to assess whether the risk of heart events is actually greater in patients using Avandia than in those who use its main competitor, the drug Actos.

According to the AP, critics of the drug say the trial is not appropriate since evidence already shows Avandia is riskier than Actos. Actos is manufactured by the Japan-based Takeda Pharmaceuticals.

Dr. Steven Nissen, chairman of cardiovascular medicine at the Cleveland Clinic, is an outspoken critic of Avandia. He says holding enrollment in the TIDE trial was "the ethically correct thing to do."

"I still think there's a very good chance that the FDA will decide to remove Avandia from the market," Nissen told the AP.

At this time, only 1,000 patients are enrolled in the TIDE trials. The study was supposed to cover 16,000 volunteers. The FDA wants the TIDE researchers to use updated informed consent forms that will describe the risks of the study to potential recruits.

The FDA is expected to make a decision on whether to keep the drug on the market in coming months.

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Panel: Avastin Shouldn't Be Used for Breast Cancer

The advisory committee for the FDA made its recommendation on July 19, regarding the cancer drug Avastin. The committee has found that the new research submitted on the drug indicates it has no appreciable benefits to patients with breast cancer and should not be promoted to treat that particular type of the disease. The committee finding would not affect the marketing or use of the drug for brain, lung, colon and kidney cancer.

The Los Angeles Times reports that Avastin, generic name bevacizumab, came onto the market after an "accelerated approval" process at the FDA for use in treating breast cancer in February, 2008. The accelerated approval process allows the FDA to rapidly approve drugs to treat life-threatening conditions, but also requires the drug manufacturer to provide additional post-market studies to confirm the drug's effectiveness and safety.

According to the Times, Avastin was combined with another drug, paclitaxel, to treat women with metastatic breast cancer. The initial trial showed an increase in the time during which the drug therapy prevented progression of the disease, known as progression-free survival, by a little over five months compared with paclitaxel alone.

However, new studies did not confirm the initial results. In fact, some studies showed the progression-free survival time increased by just over a month, with overall survival rates not increasing. Additionally, due to complications with the drug, the survival time was actually slightly less for some patients.

The Times confirms that the committee has voted 12-1 that the FDA should rescind marketing approval for use of Avastin in treating breast cancer. The drug's manufacturer, Genetech, says it stands by the findings presented in the initial study and in a statement said the drug, "should continue to be an option for patients with this incurable disease." Genetech is a subsidiary of Roche.

A decision on Avastin is expected before the end of September. Although the FDA is not bound to follow the recommendations of the committee, it usually does.

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CPSC Announces Pottery Barn Drop Side Crib Recall

On July 14, the CPSC and Pottery Barn Kids, a division of Williams-Sonoma, Inc, announced a recall on drop side cribs. This voluntary recall will affect about 82,000 units sold by the company. Consumers are asked to immediately stop using the recalled product.

As with the other drop side cribs previously recalled by the CPSC, these cribs’ drop-sides can detach when hardware breaks, creating a space into which a young child can become entrapped, which can lead to suffocation. Drop side incidents also occur due to incorrect assembly and with age-related wear and tear. CPSC and Pottery Barn Kids have received 36 reports of drop sides that have malfunctioned or detached.

The recall affects all Pottery Barn Kids drop-side cribs regardless of the model number. "Pottery Barn Kids" is printed on a label attached to the crib headboard or footboard. The cribs were sold exclusively through the Pottery Barn Kids catalog, www.potterybarnkids.com and at Pottery Barn Kids retail stores nationwide, from January 1999 through March 2010, for between $300 and $600.

The Pottery Barn recall comes after the CPSC announced a major seven manufacturer recall of more than two million drop side cribs.

Consumers should immediately stop using the recalled cribs, inspect the hardware to make sure it is not broken, and contact Pottery Barn Kids to receive a free fixed-gate conversion kit that will immobilize the drop side. For additional information, consumers can contact Pottery Barn Kids at (877) 804-3847 between 7 a.m. and midnight, 7 days a week, or visit the firm’s website at www.potterybarnkids.com.

The CPSC would also remind parents not to use any crib with missing, broken, or loose parts. Make sure to tighten hardware from time to time to keep the crib sturdy.

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Thanks for the BOOST, Nestle.

The Federal Trade Commission has reached a proposed settlement with a subsidiary of Nestle over BOOST, its childrens' nutritional drink. The FTC said that Nestle advertised that Boost Kid Essentials drink helps prevent upper respiratory tract infections in children, protects against colds and flu by boosting the immune system, reduced school sick days and sped up recovery from injuries.

The drink comes with a straw that is loaded with probiotics which are live bacteria found naturally in many foods. Probiotics are often touted as aiding digestion and fighting harmful bacteria although the science is inconclusive at best.

The FTC said that Nestle will drop claims about the health benefits of Boost Kid Essentials as well as no longer claiming that it reduces sick days or has other such benefits unless they are verified by clinical studies.

"Nestle's claims that its probiotic product would prevent kids from getting sick or missing school just didn't stand up to scrutiny," David Vladeck, director of the FTC's Bureau of Consumer Protection, said.

In a rare step, under the proposed settlement Nestle must now seek FDA approval before making any claims that its products have positive health benefits, improve performance, or other wise relating to the efficacy of any probiotic and nutrition drinks that it sells unless the claims are verified by scientific evidence.

The proposed settlement is subject to public comment for 30 days, through August 16, 2010, after which the FTC will decide whether to make it final. To file a public comment, please click on the following hyperlink: https://ftcpublic.commentworks.com/nestle.

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Toyota Crashes: Was Driver Error to Blame?

Remember to hit the brakes...

New reports from "black boxes" inside Toyota vehicles suggest that driver error, not the vehicle, is the cause for many Toyota crashes in unintended acceleration cases. The government recently analyzed vehicle data and found that people had their foot down on the gas, not the brake at the time of the accident.

Many Toyota vehicles have Electronic data recorders, also called black boxes, that can provide details about what is happening with a vehicle at the time of a crash. "...whether the brake light was on, whether the throttle pedal was depressed, what the throttle angle was," and other details, Toyota spokesman John Hanson says.

This is an important development because Toyota can use the data to fight against lawsuits in cases where the drivers were not braking. Hanson calls these cases "pedal misapplication." Hanson said he hasn't seen the National Highway Traffic Safety Administration's probe, but the automaker is certainly keeping its eye on the matter. Toyota has recalled 7.7 million vehicles in the U.S.

Mike Michels, Toyota spokesman was asked how many crashes were caused by driver error or pedal misapplication, to which he replied “virtually all.” Joan Claybrook, president of the advocacy group Public Citizen, responded to Michels comments, saying, “That is totally ludicrous,”

The fact that there are some cases of pedal misapplication does not mean that Toyota is completely in the clear. Toyota will still be held liable for the known vehicle issues that caused vehicles to dangerously accelerate and will be responsible for crashes where a vehicle malfunction was the cause. Toyota has admitted that poorly fitting floor mats caused gas pedals to be stuck down and has also admitted that some vehicles had gas pedal stick open.

However, Toyota may be able to reduce their overall liability by contesting cases where pedal misapplication is determined to be the cause of the accident. Then can contend that some people are merely being opportunists and trying to cash in on the Toyota lawsuit despite their vehicle functioning properly.

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More bad news for Johnson & Johnson's McNeil Consumer Healthcare unit after they recalled more Tylenol as well as Motrin and Benadryl. According to the company, the new recall is tied to an ongoing recall stemming from the January 15 recall of over 53 million bottles of their products.

The recall began after consumers noticed a musty or moldy odor in their pain reliever medications. The odor was linked to the chemical TBA, which was present in the pallets used in the shipment and storage of their products. The recall led to the shutdown of McNeil's Ft. Washington, Pennsylvania factory.

Johnson and Johnson McNeil released a statement on the recall:

These lots are being added to the list of recalled products as a precautionary measure after a continuing internal review determined that some packaging materials used in the lots had been shipped and stored on the same type of wooden pallet that was tied to the presence of TBA in earlier recalled lots. All lots involved in the recall were produced before the January 15, 2010 recall, after which McNeil stopped accepting shipments of materials from its suppliers on that type of pallet.

According to the U.S. Food and Drug Administration, consumers who bought recalled Johnson & Johnson products should stop taking the medicines and contact the Johnson & Johnson about a refund or replacement.

Consumers who bought medicines included in the recall should stop taking the products and contact the company about a refund or replacement, the company said in its release. Reuters reports that FDA spokeswoman Elaine Gansz Bobo said the agency would make the latest expanded recall public on its website but had no additional information.

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Guacamole and Salsa High Food Poisoning Risk

Step away from the chips and dip. Specifically, from the guacamole and salsa. According to the federal Centers for Disease Control and Prevention, contaminated salsa and/or guacamole were to blame in nearly 1 out of every 25 restaurant foodborne illness outbreaks between 1998 and 2008.

According to MSNBC, some of this problem can be traced to the individual ingredients in salsa — peppers, tomatoes, cilantro; they all have been linked to widespread salmonella outbreaks in recent years. “Fresh salsa and guacamole, especially those served in retail food establishments, may be important vehicles of foodborne infection,” said Magdalena Kendall, a researcher at Tennessee's Oak Ridge Institute for Science and Education who collaborated on the study.

According to the CDC, Kendall and her colleagues searched all foodborne outbreaks reported to the CDC for those with salsa, guacamole or pico de gallo as a confirmed or suspected food vehicle but found none until 1984. Of the 136 dip-related outbreaks they found, 84 percent were tied to restaurants and delis.

In case you were concerned that the communal aspects of many people eating out of the same bowl was somehow to blame for the spread of foodborne illness, MSNBC reports that this is not the case. Improper storage and incorrect temperatures were often reported in the cases linked to restaurants or delis, possibly contributing to the problem.

Food workers were the source of contamination in 20 percent of the outbreaks. The CDC states that risk of contamination can also be lowered by following guidelines for safe preparation and storage of fresh salsa and guacamole to reduce contamination or pathogen growth.

Madgalena Kendall confirms, as always, knowledge is power. “Awareness that salsa and guacamole can transmit foodborne illness, particularly in restaurants, is key to preventing future outbreaks,” Kendall said in a press release.

The CDC estimates that 76 million people in the United States get sick each year with foodborne illness and 5,000 die.

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Class Action Antitrust Suit Against Apple Moves Forward

Apple was once the underdog, taking on the big guys like Microsoft. What a difference a decade can make as Apple now stands accused of being a monopoly.

A class action antitrust lawsuit against Apple and AT&T can go ahead, U.S. District Judge James Ware said last week. The suit against Apple is based on the fact that iPhones were “locked down” to the AT&T network. Attorneys for the class have called Apple and AT&T’s actions a monopoly abuse. iPhone owners have complained that AT&T has had massive network problems since the original iPhone went on sale in 2007. The class is also complaining about the control over applications that can be installed on the iPhone.

The lawsuit alleges that Apple and AT&T secretly agreed to exclusivity for five years, which drove up prices and hurt the competition. The case is called In Re Apple & ATTM Antitrust Litigation. The amended complaint was filed in the northern district of California. The class includes anyone who bought an iPhone with a two-year mobile contract from AT&T.

The class action lawsuit consolidates several actions filed by iPhone buyers starting in late 2007, after Apple’s original iPhone went on the market. Apple successfully moved for summary judgment on several parts of the lawsuit. However Judge Ware found that the antitrust portion of the lawsuit can move ahead.

Neither Apple nor AT&T have commented on the Judge Ware’s decision. In addition, in a separate matter, Apple has been sued for patent infringement by NTP who claims Apple has wrongfully implemented patented technology that connects cellphones to email.

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San Francisco Mulling Bottled Water Ban

A proposed San Francisco law could make a major positive impact on the environment, or it could be yet another example of nanny-state government. It all depends on which side of the “bottled water ban” you fall on. At an environment commission committee meeting Monday, city officials will debate whether events at San Francisco parks, festivals and streets could become bottled water free. Instead, events could have reusable bottles which could be given away or sold. The event would then provide access to municipal water sources.

According to the San Francisco Examiner, the average American drinks 30 gallons of bottled water each year. In an effort to combat all of the waste those bottles create, San Francisco Mayor Gavin Newsom issued a 2007 executitve order banning the city from purchasing bottled water. Environment Commissioner Ruth Gravanis conceived the proposal and believes banning bottled water at city events is an example of good government, not interference: “We’re not telling the private sector what to do or what not to do, but we can at least say if you’re going to hold an event on city property, you need to think of alternatives to single-serve bottled water,” Gravanis said.

Another state has already taken a more aggressive approach. Concord, Massachusetts completely banned bottled water this spring, though the attorney general struck down the law.

Count Tom Lauria on the side of those who think the city is stepping too far, the Examiner reports. Lauria, the spokesman for the International Bottled Water Association, said the proposal would “compromise people’s health in public situations when they’re thirsty....“The counterbalance to bottled water is recycling, not bans.”

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Comcast P2P Throttling Lawsuit Settlement Approved

Comcast has settled a lawsuit over throttling filing sharing sites known as “peer-to-peer” sites. It will cost Comcast $16 million, although individual class members will have to drop six zeros from that figure. Judge Legrome Davis of the U.S. District Court for the Eastern District of Pennsylvania approved the settlement, which represents $16 for each class member. Jon Hart, who was the named party and who filed the original lawsuit, will receive $2,500. Current or former Comcast customers who used certain peer-to-peer sites between April 1, 2006 and December 31, 2008 and experienced throttling related problems are eligible to file a claim.

Hart sued Comcast in November 2007. Hart filed his case in Superior Court in California, accusing the company of blocking access to peer-to-peer sites including Gnutella, BitTorrent, Ares, eDonkey and FastTrack. The case was moved to Pennsylvania. Hart accused Comcast of using softwade that terminated access to file-sharing sites. Comcast acknowledged delaying peer-to-peer internet traffic during peak access times. However, the company denied that it blocked any specific sites. The Federal Communications Commission investigated and found that Comcast did block specific sites and penalized the company.

Comcast users still have until August 29, 2010 to file a claim at P2Pcongestionsettlement.com. Separate lawsuits on the matter can no longer be filed as the court previously set a deadline of May, 2010 to opt-out. If additional legitimate claims are made, the amount of the settlement could still go down.

Comcast has not admitted to any illegal action or other wrongdoing in the settlement.

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High Roller Sues and is Sued by Vegas Casinos

This case is an example of what happens when Ahab catches the whale, and the whale sues. The whale in this case is, in the terminology of Las Vegas casinos, a high roller. Terry Watanabe was indeed a high roller for years, spending most of the fortune built from his family's party-favor import business. Watanabe lost nearly $127 million in gambling debts-- and the casinos want it.

But, according to the Wall Street Journal, Watanabe says it is not entirely his fault the debt is so huge. Several of the Harrah's Entertainment casinos and the District Attorney's office came after Watanabe in April, charging him with intent to defraud and steal from Harrah's, stemming from $14.7 million that the casino says it extended to him as credit, and that he lost. Then, the whale fought back. Mr. Watanabe filed a civil suit in Clark County, in June, claiming the casino staff routinely gave him liquor and pain medication as part of a systematic plan to keep him gambling.

Additionally, the suit claims Watanabe was permitted or even encouraged to gamble while visibly intoxicated, according to the Journal. This is a violation of both casino rules and state law. A few current and former Harrah's employees say they were afraid to discourage Mr. Watanabe's drunk gambling for fear they would be fired. State regulators have the authority to fine casinos for letting people gamble who are visibly intoxicated, but such fines haven't been levied, Brian Duffrin, executive secretary to the Nevada Gaming Control Board and the Nevada Gaming Commissions, told the Journal.

On July 8, AoL News reported Watanabe and the Harrah's casinos came to a temporary agreement. Watanabe has agreed to drop his suit and the casinos' claim will await a decision by an arbitrator. In addition, Watanabe has reached an agreement with the prosecutors in the criminal case that will allow the former high roller to avoid jail time.

Some laws applicable to gambling in casinos are set up to protect the consumer, such as those against gambling while intoxicated. But as this case illustrates, it may not always be the first action a casino may take. Don't depend on the law to keep you out of debt. And remember, the house always has the advantage.

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Watch out for falling lights.

The U.S. Consumer Product Safety Commission is recalling dangerous stadium lighting poles which have fallen quite suddenly and pose a risk of death. The poles are over 60 feet tall and way between one and four tons. At least 11 poles have already fallen, one breaking through the roof of a high school gym. In other incidents, the poles have hit bleaches causing major damaging and demonstrating their capability to serious harm spectators. Most of the incidents have been in Texas.

The CPSC reports that there have been several close calls with spectators who were in the area when the poles fell, but luckily no one has been injured. The manufacturer is Whitco Company LP, of Fort Worth, Texas. The poles were sold nationwide from 2000 through 2005. The company is now out of business.

The CPSC reports that more than 2,500 poles could be defective. Further inspections are currently underway. A design analysis to assess the stresses placed on the pole is required to ensure future safety. Special equipment is required to detect the defects, so concerned citizens should not to attempt to investigate the poles themselves. The recall is designed to locate, inspect, recall and repair the outdoor steel stadium light poles.

The CPSC has provided a list of locations for the recall. There are several prominent locations including Purdue University, Union Pacific Railroad, BYU and hundreds of high school and little league sports parks.

CPSC recommends that all outdoor steel stadium light poles be routinely inspected by a professional. As the Whitco Company LP has become bankrupt, individual owners of the poles must arrange for inspection.

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Famed American gum company Wrigley will settle a false advertising lawsuit over its Eclipse gum. The W.M. Wrigley Jr. corporation has agreed to pay a settlement of as much as $7 million and change how it markets and labels the Eclipse chewing gum. Plaintiffs in the class action lawsuit over the gum said claims about the natural germ-killing ingredients in the gum were misleading. Wrigley is a subsidiary of Mars, Inc.

According to a report by the Associated Press, the suit was filed in federal court in Florida. It specifically targeted the ads for the gum which claimed a new ingredient, magnolia bark extract, kills the germs that cause bad breath while competing gums merely mask bad breath. The ads and other marketing will be changed under the settlement. In addition, the company will pay between $6 million and $7 million to a fund that will be used reimburse consumers up to $10 each for the product and to cover other costs of the settlement.

According to PRNewswire, Paul Chibe, Wrigley Vice President and General Manager U.S. Gum and Mints made a statement about the settlement saying, "Wrigley has agreed to a settlement of this lawsuit to prevent further distraction to its business and denies any wrongdoing." Requests to the company for further comment went unanswered.

PRNewswire reports that for more information about the settlement, including the process for filing reimbursement claims and other options, consumers will be able to visit www.EclipseSettlement.com or http://www.rgrdlaw.com/.

The settlement must still be approved by the U.S. District Court for the Southern District of Florida.

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CA Bill Banning BPA in Baby Bottles Advances

The California State Assembly has passed a bill with a vote of 43-31 which would ban BPA or Bisphenol-A from all baby bottles and any other items that frequently are used by small children. The bill, SB 797, is called “The Toxin-Free Toddlers and Babies Act.” BPA has been tied to health problems including autism, asthma, infertility, hyperactivity and cancer, although the potential link is still being researched and is far from conclusive. The bill would ban the presence of BPA in feeding products including plastic baby bottles, sippy cups and baby formula containers and formula for children three and under.

SB 797 is now headed back to the Senate, where it was first introduced and passed 21-16 vote. If passed again, it would then be sent to California Gov. Arnold Schwarzenegger to sign or veto. Schwarzenegger has not indicated an opinion on the bill.

The bill faces opposition from the American Chemistry Council. Tim Shestek, their senior director of state affairs, stated, "We don't believe that the Legislature … should be in the business of making decisions on these complex scientific questions.”

Sen. Dianne Feinstein, disagrees: "California has become a critical battleground for the future of bisphenol-A, which has been linked to early puberty, breast cancer, childhood obesity and neurological and behavioral changes such as autism and hyperactivity.”

Until January of this year, the U.S. Food and Drug Administration had contented that BPA posed no concern. However, the FDA is now calling for studies of the risks of BPA.

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Verizon to Pay $21M in Early Termination Fees Suit

Verizon Wireless has agreed to settle a class action lawsuit, again. Not again as in yet another suit, but again because they had already settled it but it was held up due to appeals. Verizon agreed to pay approximately 175,000 members of the class action lawsuit $21 million over accusations that it wrongfully applied early termination fees to customers when they terminated service.

While $21 million sounds like a lot of money, it works out to about $120 per person, before the attorney’s take their fee. After fees each class member will likely receive around $80. Verizon says the settlement ends all lawsuits against the company over early termination fees. The funds are being held in escrow and the distribution of checks is expected to begin around October.

In a sign of just how long litigation can take, the case originally began in 1999. The lawsuit originated after Verizon allegedly extended user contacts anytime a customer made any change to their plan. Customers were often under the impression that their contact term had ended and instead found themselves on the hook for a $175 early termination fee.

After public outcry and media attention from lawsuits against most of the major cellular carriers, the companies changed their practices. Most created pro-rated early termination fees, where after each month of service the cost to end the contract goes down. Early termination fees exist because consumers get their phones at a discounted rate that is subsidized by their monthly phone service contract.

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Circle Contact Lenses Illegal, Pose Health Concern

A new trend in eye-wear is circulating, and it could be dangerous: circle lenses. Circle contact lenses are eye lenses that cover not only the iris of the eyes, but part of the whites as well. This design gives the wearer an especially doe-eyed or wide-eyed look and is an increasingly popular trend among teens and younger adults.

The circle lenses can be bought online for $20 or $30 a pair. According to EmaxHealth.com, the danger with the lenses is that they are not sold by prescription, something which is necessary for a legal sale in the U.S. Circle lenses are imported from Asia where the trend is said to come from the look of characters in Japanese anime. The lenses are widely popular in Japan, Singapore, and South Korea. Other wearers may have been inspired by the wide-eyed look in Lady Gaga's Bad Romance video.

No matter where the look originates, in the U.S., many online sellers of the circle contact lenses do not check prescriptions with eye care providers. They allow buyers to choose not only the color of the lenses, (including wilder shades of pink or green) but the strength as well.

Karen Riley, spokeswoman for the FDA, said “Consumers risk significant eye injuries, even blindness, when they buy contact lenses without a valid prescription or help from an eye professional.”

More than 30 million Americans use contact lenses, according to the Contact Lens Council. EmaxHealth reports contact lens wearers should know that poorly-fitting contact lenses can scratch the cornea or deprive the eye of oxygen, causing serious vision problems and even blindness. Since lenses sit directly on the eye, they can also be the cause of corneal ulcers and eye infections if not cared for properly.

The FDA suggest the following for users of contact lenses.

  • Get an eye exam from a licensed eye care professional, even if you feel your vision is perfect.
  • Get a valid prescription that includes the brand and lens dimensions.
  • Buy the lenses from an eye care professional or from a vendor who requires that you provide prescription information for the lenses.
  • Follow directions for cleaning, disinfecting, and wearing the lenses, and visit your eye care professional for follow-up eye exams.

One small benefit to the wide circulation of the many Youtube videos and online chatter about where to get the lenses; now that so many people are using them, early adopters of the trend say they are moving on.

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Obama's Healthcare Reform Law Heads to Court

As discussed in prior posts, the Obama Administration's healthcare reform law is facing multiple legal challenges from various states. The states claim healthcare reform is a power grab by the federal government who is exercising rights not given to it by the U.S. Constitution. The government says it is well within the powers of Congress to legislate over such an important issue as healthcare. The first suit, brought in Virginia was argued on July 1.

Virginia Attorney General Ken Cuccinelli outlined his basic argument to NPR earlier in the year. "It is our position that the individual mandate is unconstitutionally overbroad under the Commerce Clause," Cuccinelli, a Republican, said. "You cannot compel someone to buy something from someone else." As you will recall, nearly every American will be required to purchase health insurance. This will be important for keeping down the ever rising price of health care in this country, according to the Obama Administration.

Rob Weiner, the Justice Department's point man for defending the health care statute, told NPR the states are trying to have it both ways. "The states cannot say we're entitled to take the money and disregard the conditions. That's not the way it works," he says. "Congress is appropriating billions of dollars that it's providing to the states for Medicaid, and it's entitled to attach conditions to the billions of dollars that it provides," he says.

One of the key constitutional issues in the case is a states' rights vs. federal government powers argument. The states argue that Congress is misusing and overreaching its power under the Commerce Clause of the Constitution when it forces people to purchase a product.

Government lawyers and others see the law as constitutional not only under Congress's Commerce Clause power, but in its power to tax. Rob Weiner tells NPR a there is a clear federal interest in health care because it costs so much for taxpayers — $43 billion to cover people who didn't have insurance and didn't have an ability to pay their medical costs.

No matter the outcome of the Virginia case or the one that is next up from Florida, the best bet is that the Supreme Court will be the one to make a final decision in this contentions and divisive case.


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Multiple lawsuits have been filed against Apple and AT&T in California, Maryland and Texas. Bloomberg News is also reporting of two additional class action suits filed against Apple in New Jersey and Massachusetts. The lawsuits allege that the iPhone 4 drops calls frequently due to a faulty antenna design that Apple was aware of when it sold the units. The plaintiffs allege negligence, breach of implied warranty, fraud, deceptive trade practices and several additional counts. The California lawsuit claims, "design and manufacturing defects that were known to Defendants before it was released which were not disclosed to consumers".

The Apple iPhone 4 has been in the news after selling 1.7 million units in the first three days and receiving largely favorable reviews. Customers lined up for the iPhones which eventually sold out both online and in stores.

However, it was quickly discovered that covering the lower left side of the phone, as is common practice, can cause signal loss and dropped calls. Apparently, antenna points are located in the lower left side, so users hands are interfering with the signal. The antenna design was advertised by Apple as a feature of the new phone and design improvement over previous iPhones.

In order to overcome the defects, the lawsuit alleges that consumers are left with three unsatisfactory options: to hold the phone in a particular, uncomfortable manner, return the phones and pay a restocking fee or purchase a case for their phone.

The plaintiffs are seeking financial compensation, and an injunction to force Apple to stop selling the iPhone 4 until the alleged defects are corrected.

So far, Apple has not officially responded to the allegations although Apple CEO, Steve Jobs, reportedly responded to a customer email complaint by telling him to "Calm down [...] It is just a phone.”

That argument is unlikely to sway the attorneys who have filed the lawsuits.

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Sony Recalls 500k Vaio Notebooks

Sony Corporation has announced a recall of 535,000 Vaio laptop computers due to issues with over-heating. Instances of Vaios over-heating and damaging their casings have been reported. No reports of injuries from burns have been made, but according to the computer maker, it is a concern.

PCWorld reports that the problems have affected some units of the VPCF11 and VPCCW2 series of notebook PCs. According to a blog post by Mike Lucas, senior vice president of Vaio for Sony, the heating issues are "due to a potential malfunction of the internal temperature management system."

According to reports, the heat management system in the BIOS (Basic Input/Output System) of affected Vaio laptops is not functioning properly and can cause the system to run hot. PCWorld writes the system for the Vaio laptop was developed by a third party, and customized for Sony by yet another third party. However, Sony tested it on the Vaio platform before releasing it to the public.

Sony has said that a firmware fix of a BIOS update is available. The company is directing users with affected Vaio laptops to apply the update to prevent overheating issues. A Sony statement also suggests, "If you have any questions or need additional assistance with the firmware update installation, call Sony technical support at (866) 496-7669 for assistance."

PCWorld says that the BIOS update, while not overly difficult, can be "daunting" for less technologically advanced users. They strongly recommend having all data backed up before beginning the update. Also, users are told to plug in the laptop before starting the update. Running out of power in the middle of the BIOS update and interrupting the process "could result in turning the laptop into a glorified paper weight."

If this sounds like too complicated a task, Sony will arrange for a pick up of a unit under recall. To find out if your unit is affected, you can go to the Sony Vaio support page by clicking here.

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FDA: Antibiotics in Meat May Be a Health Threat

On June 28, the Food and Drug Administration announced recommendations to the meat industry asking they cut back on the use of antibiotics in meat producing animals. The drugs should be given only for health reasons and not, the FDA said, to increase production and promote growth. This recommendation comes at a time when many are concerned about the link between antibiotics in animals and antibiotics-resistant strains of bacteria affecting humans.

The Los Angeles Times reports that a draft guidance statement from the FDA read, "The development of resistance to this important class of drugs, and the resulting loss of their effectiveness as antimicrobial therapies, poses a serious public health threat." The agency called on meat producers to consult more closely with veterinarians about when to use drugs and which compounds to employ.

As straightforward and strong as this statement sounds, it pleased no one. The Times reports that the statement upset a leading meat industry group, and managed to disappoint a key nonprofit science organization calling for sharper restrictions on antibiotics, as well.

According to a statement released by the National Pork Producers Council, the FDA guidance was overly burdensome and would rob the industry of drugs important to the health of animals. "There is no scientific study linking antibiotic food use in food animal production with antibiotic resistance," the statement said.

Margaret Mellon of the Union of Concerned Scientists disagreed, calling the Pork Producers Council statement, "patently untrue. There is a mountain of studies linking the use of antibiotics in animals to the evolution of resistant pathogens that cause human disease." The Union was hoping for more recommendations from the FDA as opposed to a statement of principle. "They're apparently expecting voluntary action. It's my belief that the industry's not going to act until it has to," Mellon said.

The FDA guidance applies to antibiotics deemed "medically important" because they also are useful in treating human illness.

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