Common Law - The FindLaw Consumer Protection Law Blog

December 2009 Archives

Banks Soon Required to Tell You if Your Credit is Bad

On the theory that knowledge is power, more information usually better than less. In that vein, new regulations passed by the FTC and The Federal Reserve Board will require banks to give consumers more information regarding why they are receiving less than favorable terms on their loans. The new banking regulations will apply to all types of credit such as credit cards, auto loans, mortgages and student loans. The rules will apply to banks as well as lenders such as auto dealers and financing firms.

When a borrower is given a loan at terms “materially less favorable” than “a substantial proportion” of the lenders’ other customers, according to the Federal Register, the bank will be required to give notice and a free credit report or score to the borrower. Currently, banks are not required to explain why a borrower is given the terms set by the lender.

It might be helpful for some consumers to receive a clear indication of problems with their credit score, but consumers should know that these regulations ask lenders to do something that they can do for themselves, right now. Although in its report on the new regulations, Bloomberg notes that credit reports usually have a fee attached, they also list several services which provide one free credit report a year: Equifax Inc., Experian PLC and TransUnion LLC. Go to to obtain a copy. In other words, don't wait for these regulations to take effect or for a bank to hit you with high interest rates on your next car loan, protect yourself by understanding your credit before you apply for a loan or credit card. It can only be hoped that lenders will not use these regulations as an excuse to raise fees to pay for the new "service" of notifying consumers of their credit rating.

These regulations were written to comply with a 2003 bill passed by Congress to improve the accuracy of credit reports, combat identity theft and give consumers more control over solicitations. They do not take effect until Jan. 1, 2011.

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FTC, Others Submit Standards for Marketing to Kids

On December 15th, the Federal Trade Commission's (FTC's) conference of government agencies including the Center for Disease Control (CDC), the Food and Drug Administration (FDA), and the Department of Agriculture (DOA) announced some tentatively proposed standards that would apply to foods marketed to children, ages 2-17. These suggested standards were the result of the 2009 Omnibus Appropriations Act in which Congress included a direction for a multi-agency group to develop recommendations for marketing standards and suggestions for the types of media to which these standards should apply.

There are three proposed "standards" that companies would use to decided whether a food could be marketed to children. The standards are described as follows:

  • Standard One: Foods that are part of a "healthful diet" and may be marketed to children. These foods include, 100% fruit and fruit juices in all forms, 100% whole grains, and 100% non-fat and low-fat milk and yogurt. "100%" is defined “as no added nutritive or non-nutritive sweeteners and no other functional ingredients added to the product, except for flavoring for water, milk, and yogurt.”
  • Standard Two: These foods are defined as providing a "meaningful contribution to a healthful diet." These foods are listed as; fruits, fruit juices, beans, vegetables, fish, nuts, and eggs, among other items. These foods must be in the product marketed to children in a specified amount.
  • Standard Three: Defines the amount of trans fat, saturated fat, sugar, and sodium permitted to be present in Standard Two foods. For example if a vegetable product (i.e., Vegetable Chips) contains enough vegetables to qualify as a Standard Two food, but contains 0.5 g or more of trans fat per serving, the food should not be marketed to children.

The group has said these proposed standards are not the actual regulations that will go into effect, but are part of a report that will be given to Congress no later than July 15, 2010. Additionally, the group will publish a notice in the Federal Register asking for input and feedback. Some of the questions they are seeking comment on include whether the standards should apply to one age group or two, should foods be added or subtracted to the set of standards listed, and how to define the term "marketing to children."

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Deptartment Of Transportation Limits Tarmac Delay Time

The Department of Transportation (DOT) has ordered that airlines must allow passengers to deplane if they have an airplane wait of 3 hours or longer.

Unfortunately for holiday travelers, the rules won't take effect until 120 days have passed from the DOT's announcement.

NPR reports that the new regulations aim to address largely ignored passenger rights on airplanes. The Obama Administration hopes that it will send an important message across to the airline industry about tarmac delay abuse. NPR quotes Transportation Secretary Ray LaHood as saying, "Airline passengers have rights, and these new rules will require airlines to live up to their obligation to treat their customers fairly."

The new regulations requires airlines operating domestic flights to allow passengers to deplane if their airplane wait is three hours or longer. It does allow exceptions to this rule for safety, security, or disruption of air traffic control. Airlines must also give passengers food and water within two hours of a tarmac delay as well as access to airplane bathrooms.

Airplane wait is a common theme in airports. From January 2009 until June 2009, 613 flights were grounded on tarmacs for more than three hours. Passengers were forced to stay on the planes.

Airlines who schedule flights that are always late will face charges of unfair and deceptive practices.

Airline companies are opposed to these new regulations. They claim that forcing planes to turn around and go back to terminals will only worsen flight delays. However, the federal government wanted to address the issue of tarmac delay. Last month, the Dept. of Transportation actually penalized Continental Airlines, ExpressJet Airlines and Mesaba Airlines for a six hour airplane wait on Continental Express Flight 2816 en route to Minneapolis. The passengers were diverted to Rochester and forced to sit in the plane overnight. The employees refused to open the gate to allow passengers to enter the airport terminal. It was the first time that the agency penalized an airline for a tarmac delay.

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Oh Nuts! FDA Announces Hazelnut Recall

In a press release dated December 17, a FDA recall was announced for Willamette Filbert Growers of Newberg, OR, of 29,861 lbs of their Shelled Hazelnuts and Shelled Organic Hazelnuts. During product testing, one lot of nuts was found to contain salmonella. As a precautionary measure, Willamette Filbert Growers is recalling all shelled hazelnuts and shelled organic hazelnuts processed from October 12th, 2009, through November 25th, 2009. All products subject to recall were packed in 25 lbs. corrugated boxes bearing Willamette Filbert Growers or Meridian Organic Hazelnuts labels and with lot code numbers 289091A and 311091A.

The Wilmamette Growers ship their products to various retailers in states across the U.S. an Canada. Due to this recall, grocery chain Whole Foods Market is also recalling hazelnuts from its stores in California, Colorado, Kansas, New Mexico, Oregon, Utah, and Washington. Ben Mitchell, president of Willamette Shelling and manager of Willamette Filbert Growers, tells WebMD that in addition to Whole Foods, Willamette's nuts are on the market under the brand names Kunze Farms, Evonuk Oregon Hazelnuts, Canadian Hazelnuts, and Firestone Farms.

Salmonella is an organism which can cause serious and sometimes fatal infections in those with weakened immune systems and in young children, frail or elderly people. Relatively healthy persons infected with salmonella often experience fever, diarrhea, nausea, vomiting and abdominal pain. Rarely, a salmonella infection can result in the organism getting into the bloodstream and producing more severe illnesses such as arterial infections, endocarditis and arthritis.

This recall is precautionary and no illnesses have been reported. The FDA asks consumers who may have already purchased any recalled nuts from Willamette Filbert Growers Shelled Hazelnuts or Meridian Organic Hazelnuts to return the product to the place of purchase for a full refund. Consumers with questions may contact Ben Mitchell at (503) 538-9256, Monday through Friday, between 8 a.m. – 5 p.m. PST.

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O Canada! Shopping Fraud Abroad a Warning for U.S. All

Ahhh, the last minute holiday bustle. If you are hustling and bustling to purchase those last second gifts, especially online, use caution. According to our friends at the Canadian Anti-Fraud Call Centre, rushed online holiday shopping can lead to increased fraud. Although the following statistics are from Canadian sources, fraud knows no boarders, so the lesson still applies.

Last year, the Canadian Anti-Fraud Center reported that citizens of our neighbor to the north were cheated out of $9.5 million, through credit card fraud, cloned debit cards and cash scams. A further 11,000 were the victims of identity theft. Calls to the Fraud Center unsurprisingly spike in January, as people discover problems linked to holiday purchases.

Needless to say, online shopping is a prime target for fraud since customers send money and credit card information to people and business they do not necessarily know. Captain Louis Robertson, who heads criminal intelligence at the Canadian Anti-Fraud Call Centre, reminds folks to do a little research before entrusting your money to a site you are unfamiliar with. "You should be a little more vigilant, a little bit more careful," Robertson says.

Here are a few reminders from our Canadian friends on how to avoid being the victim of some of Santa's more criminally minded helpers:

  • Never give out personal information (SSN, driver's license, passport numbers) online.
  • Don't let your card out of your sight in a store: follow your credit card to the counter and watch the transaction take place.
  • Always protect your debit card PIN.
  • Monitor your bank statements, and match receipts against transactions.
  • Do your online research — only shop with companies you know and trust.
  • Contact financial institutions and/or credit card companies immediately if you believe you've been a victim of fraud.

Have a joy-ful and fraud-less Holiday Season!

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Just when you thought you'd earned a bit of rest and relaxation before a roaring fire, perhaps with a small gift box to open and maybe a cup of eggnog by your side -- wait. According to the Dallas Morning News, the holidays are full of lurking safety issues, some real, some ridiculous. As Jacob Marley would say "take heed..."

Let's begin with a visit to the island of counterfeit toys. According to NBC Miami, south Florida's ports are being flooded with fake and dangerous toys. Federal customs agents recently intercepted a shipment of toys including little toy drums with parts that present a choking hazard, sweet yellow duckies coated in lead paint and green froggy lighters that actually shoot out flames. Also included were dozens of MP3 players, dolls and backpacks, less dangerous, but all fakes that violate intellectual property laws.

The worst toy on this naughty list is a real hazard. Also present in the intercepted shipment were black toy guns with no markings to indicate they are not real. As Harold Woodward, director of field operations in Miami said, "...if in the wrong hands, if in the wrong situation, if this weapon was pointed at any one of us or used in the perpetuation of a crime ... any common sense individual would say, this is probably a real weapon."

Meanwhile, back at the cozy fireplace, use caution opening that gift and drinking that eggnog. Please be aware that 6,000 of the more klutzy among us wind up in the ER due to package opening related injuries. No kidding. Further, one sip of that eggnog can also send you to the hospital. Although the Morning News reports "no specific eggnog-related data," the CDC estimates that one in 50 consumers could be exposed to a contaminated egg each year.

As if that weren't enough, do try to keep the mistletoe and poinsettia off the menu and away from the kids. Last year, Poison Control received 132 calls about mistletoe and 1,174 for poinsettias. It gets better: there is also a report that in 2008, Poison Control Centers received 426 calls about the ingestion of American and English holly. Why any grown or even little person would even try to place a sharp and thorny plant in their mouth defies imagination.

Have a warm and safe holiday season. And for heaven's sake, don't eat any holly.

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CPSC Announces More Crib Recalls

As has been fully reported in Findlaw's Common Law, the CPSC has issued recalls regarding the drop side crib, the most recent from Storkcraft. The CPSC has just announced a new effort to find and recall drop side cribs by the makers Simplicity Inc. and SFCA Inc., of Reading, Pa. The Commission believes the companies are no longer in day-to-day operations.

The CPSC has been made aware of the death of an infant in September 2009, due to suffocation when part of the child's crib broke. The plastic hardware on the recalled cribs can break or warp causing the sides to detach. When the drop side of the crib detaches, an infant or toddler can become stuck in the space formed between the mattress and crib, which can lead to suffocation. The CPSC has recalled over 2 million Simplicity drop side cribs in December 2005, June 2007, September 2007, September 2008 and July 2009.

All Simplicity drop side cribs have been recalled. Some of the model numbers recalled include but are not limited to the following: 4600, 4605, 4705, 5000, 8000, 8050, 8324, 8325, 8620, 8740, 8745, 8748, 8750, 8755, 8756, 8760, 8765, 8778, 8800, 8810, 8910, 8993, 8994, 8995, 8996.

The recalled drop side cribs were sold in department stores, children's stores, and mass merchandisers nationwide from January 2005 through June 2009 for between $150 and $300.

The CPSC is asking that parents and caregivers check cribs to see if they are using one of the recalled Simplicity cribs. Consumers are asked to stop using the cribs immediately and not to attempt to fix the cribs themselves but to contact the retailer where they purchased the crib for information. Please go to the CPSC site for the full text of the recall and more information:

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GAO Reports FDA Has More Work to Do On Drug Safety

Three years ago, the Government Accountability Office asked the FDA to make substantial changes in the way it oversees drugs that have already been approved and are available for use by patients. In the wake of the troubles with the FDA approved drug Vioxx and its link to heart attacks and strokes, the FDA had been charged with setting up a new office and system to track drugs currently on the market. As of the GAO's report in November, they are still working on it.

According to the GAO report, the three main areas the FDA had been asked to address were: enhance the process for decisions about the safety of drugs on the market; improve access to data about the safety of those drugs and build its capacity to handle the postmarket drug safety workload. At this point, the GAO continues, "It is not yet clear if or when FDA's decision-making process will be substantially improved as a result of its efforts."

What, if anything, has changed at the FDA? Some changes have been made to the post approval drug oversight, but according to critics, not enough. Most of the oversight power remains with those scientists who approved the drugs in the first place, the New Drug Office. This can lead to inadequate action. "There's this desire on the part of the people who first approved the drug to say, 'We predicted everything and it's fine,'" said Dr. Diana Zuckerman of the National Research Center for Women and Families in Washington.

More say over the safety concerns of these drugs was supposed to have been transferred from the New Drug office staffers to a new office charged with surveillance of drug safety: the Office of Surveillance and Epidemiology. The FDA has responded by saying that the New Drugs division maintains power over the postmarket releases because that is "where staff with the broadest expertise and experience" on product safety issues reside. The Department says it will transfer more responsibility to the surveillance office when its nearly 200 employees gain the experience and resources needed to take on those tasks. The GAO report has requested a timetable from the FDA for the transfer of responsibility to the new office.

Despite the overall lack of progress, some changes have been made. Congressional investigators did note that the FDA has made progress on some of the other issues it was asked to address including: revamping the computer system used to track and sort reports of drug side effects, gathering more reports about possible drug safety issues from federal agencies and private medical systems, and developing a system to resolve drug safety disagreements between staffers.

FDA officials declined to comment beyond the agency's response included in the report.

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Netflix Sued for "Borking" Consumers

def, borking: 1. (v.) To invade one's privacy by revealing his or her movie watching choices to public scrutiny.

You may have heard of the Netflix contest where dozens of movie choices and ratings made by Netflix customers were released to contestants in the hopes they could write a program to better predict the individual's future movie preferences. Thanks to the release of this personal information online, Netflix is now the subject of a class action suit, Doe v. Netflix, for "the largest voluntary privacy breach to date."

Private information, such as a one's video rental history is actually protected under the Video Privacy Protection Act, which was inspired by the first historical incidence of "borking." During hearings on his nomination to the Supreme Court in the 1980's, a reporter went to the local video rental store patronized by Professor Robert Bork, obtained a list of his recent movie picks -- and published them. While it turned out his movie preferences were "films unremarkable for anything salacious," this breach so appalled Congress they passed a law protecting the privacy of movie rentals. And please, don't let the quaint little anachronism "video movie rentals" confuse you; this means you, Netflix.

Despite the fact that Netflix claimed to have "anonymize[d]" the rental information provided to contestants, researchers were easily able to create a method to start linking the data provided with customer names. And now, a second contest is on the horizon which will provide information including gender, zip code, age and movie ratings. According to Wired, if a data set reveals a person’s ZIP code, birthdate and gender, there's an 87 percent chance that the person can be uniquely identified. And that just might amount to a breach of privacy under the VPPA, among other things.

And why would anyone care if others knew about their movie choices? The suit calls this the "Brokeback Mountain Factor." The plaintiffs claim that movie choices often mirror very personal struggles with, or issues about divorce, adultery, sexuality or abuse. The lead plaintiff "Jane Doe" is a lesbian mother who claims that the Netflix release of information make it possible for her to be outed, which would "negatively affect her ability to pursue her livelihood and support her family and would hinder her and her children’s ability to live peaceful lives..."

The complaint also claims that due to the Netflix contest, "[p]laintiffs’ and class members’ movie data and ratings, which were released without authorization or consent, have now become a permanent, public record on the Internet, free to be manipulated and exposed at the whim of those who have the Database." That idea is scarier than Chainsaw Massacre III -- not that I rented it.

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Baby Carrier Recall: 447,000 Recalled Due to Fall Hazard

The U.S. Consumer Product Safety Commission and the National Highway Traffic Safety Administration (NHTSA) have announced a baby carrier recall of Dorel Juvenile Infant Car Seat/Carriers.

The press release by the U.S. Consumer Product Safety Commission (CPSC) states that when the product is used as a baby carrier, the child restraint handle to the seat can loosen and fall off. This poses as a fall hazard to infants.

Dorel Juvenile has disclosed that there have been 77 reported instances where the child restraint handle has either partially or fully come off the carrier. Injuries have ranged from bumps and bruises to a head injury.

The baby carrier recall includes: Safety 1st, Cosco, Eddie Bauer and Disney branded infant car seat/carriers. They were sold with Travel Systems. The stroller portion of the travel system is not affected by this recall. They were manufactured from January 6, 2008 through April 6, 2009. They were sold nationwide from January 2008 through December 2009 for between $120 and $220.

The CPSC told CNN that the baby carrier can still be used as a car seat: "There's nothing wrong with the seat. Once it's set in the car there's absolutely no issue."

Dorel Juvenile is offering a repair kit for consumers affected by this recall. The repair kit contains new bolts that consumers can attach to the handle and seat carrier. They can order these free repair kits by contacting Dorel Juvenile at 866-762-3316.

The CPSC warned parents not to use the car seat/carrier as a baby carrier until they use the repair kit. Patty Davis, a spokeswoman for the Consumer Product Safety Commission, told the AP "You don't want to take a chance by using this recalled car seat carrier, until you have the repair kit in place. The handle can fall off and the car seat carrier can drop, injuring your infant."

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New Jersey Senate Passes A New Calorie Law

CBS News reports that the New Jersey Senate passed a new calorie law. The calorie law would require chain restaurants in New Jersey to post the number of calories in a product right on the menu. The calorie food count measure requires all restaurants with at least 20 locations nationwide to comply with the new law. The bill would not apply to salad bars or buffets.

The penalties for non-compliance range from $50-$100 for a first time offense and then increase to $250-$500 for future offenses.

The law is intended to help consumers make smarter food choices by arming them with calorie food count facts. According to, this is not the first time a legislative body has addressed this issue. New York City was the first jurisdiction to introduce a calorie law last year. It was followed by California in July, Maine, Massachusetts, and Oregon. Similar measures are being considered in 20 states and localities to date. Philadelphia is planning to enact a similar law in 2010.

While these laws are intended to improve and empower consumers' choices, there are a lot of people who disagree with calorie food count laws.

Rena Levine Levy, owner of Windmill Hot Dog Restaurants, owns 8 locations in the state of New Jersey. While she is not impacted by this calorie law, she still tells CBS News: "I think that some people will pay attention to it. I don't think that obese people will pay attention to it. I don't advocate you eat that every day, but food can be fun."

She claims that the bill will not help with obesity and she worries that the bill will only hurt businesses who make their living off of high calorie fast foods.

However, the New Jersey Senate feels like the law will help their citizens get back on track towards a healthier lifestyle. The New Jersey senator sponsor, Joseph F. Vitale told CBS News: "The payoff is that people will hopefully take better care of themselves, eat a little better from time to time and health care costs could even improve, who knows. This does not tell a restaurant what to serve."

In the meantime, an NYU study revealed that in spite of the recent calorie law passed in New York City, consumers still made poor choices in food selection. In fact, consumers' average calorie count was a whopping 846 calories.

For more information, please visit our Related Resources.

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SF Mayor Calls for More Info on Cell Phone Radiation

According to the S.F. Chronicle, San Francisco Mayor, Gavin Newsom loves his iPhone. Regardless, Newsom is calling for a city-wide requirement that retailers provide information on cell phone radiation levels to consumers.

The jury is still out on whether or not the available scientific information shows that radiation from cell phones poses a health risk. Newsom seems most interested in making the information available to the public, and permitting them to make their own decisions. "The information exists, but not at the point of sale," he said. "If we prevail, and I believe we will prevail, other cities will follow suit."

The FCC, in conjunction with the FDA, has determined what it finds are safe limits for exposure to radiation. These limits are calculated in terms of a unit called the Specific Absorption Rate, or SAR. That rate signifies the amount of radio frequency energy a person absorbs into his or her body and brain when talking on a cell phone. Currently, the FCC requires that cell phone manufacturers ensure their phones are at or below a SAR level of 1.6 watts per kilogram of body tissue. Newsom's proposed legislation would require cell phone retailers to display the SAR level next to each phone in a font at least as large as the price and provide information explaining what the SAR values mean.

The Cellular Telecommunications and Internet Association, a trade group representing cell phone companies, disagrees that cell phones pose any health risks. John Walls, vice president of public affairs for the trade group, released a statement saying in part, "CTIA and the wireless industry have always been guided by science, and the views of impartial health organizations. The peer-reviewed scientific evidence has overwhelmingly indicated that wireless devices do not pose a public health risk."

Newsom expects the organization to fight the proposed city ordinance.

For a list of the cell phones that emit the lowest amounts of radiation, go to:

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You'll Shoot Your Eye Out? Toy Dart Gun Recall

It seems that a toy dart gun recall by OKK Trading was not done because a child shot his eye out, but from a child choking to death. According to the U.S. Consumer Product Safety Commission press release, the company has done a voluntary recall of the toy dart gun set because of a child choking on one of the soft pliable darts. The death occurred back in November 2007 in Texas.

The toy dart gun set was sold in discount department stores for $1.00, but the company will give customers $3.00 in return for the recalled toy. The company will also provide a prepaid postage envelope. The toy was manufactured in China. Approximately 22,000 of the toy dart gun sets were sold in the United States. They were sold from December 2006 until March 2008.

The set's description is as follows: it is a toy gun with three soft rubber darts, a SWAT watch, baton, walkie talkie, whistle, a badge, and an ID card.

The recall warns parents to take away the recalled toy immediately from children and contact OKK Trading in order to return it. If a child puts the soft dart in his/her mouth, it can become lodged in the child's throat and suffocate the child. The child could suffer from brain damage or death.

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Bad Publicity Bites: Zhu Zhu Safety Assured by CPSC

A big ruckus has broken out over a small, cute little mechanical hamster. One of the hot toys for this season, the Zhu Zhu Hamster made by Cepia, LLC, was accused recently by a consumer watchdog group of containing too much of a heavy metal called antimony. Antimony is a material used to make metal alloys and has been linked to heart and lung problems. Rushing to reassure consumers, the Consumer Products Safety commission (CPSC) announced on December 8th that there was to be no Zhu Zhu recall, and the furry little beast was safe after all. But not before the negative publicity caused a big, hairy mess for the company.

As parents are unhappily aware, toy recalls have become common place in the past few years. In the case of the Zhu Zhu hamster, a consumer group called GoodGuide, who's purpose is to help consumers find "safe, healthy, and green products that are better for you and the planet," made a small goof when they tested one hamster, "Mr. Squiggles" to be specific, for levels of antimony.

According to, the Zhu Zhu safety testing can be explained like this: GoodGuide tests for contaminants using a handheld device called an X-ray fluorescence gun. The test can detect antimony, but cannot accurately measure toxic levels of the metal. That requires a different test, called a solubility test, which is the test used by the CPSC. Their soluble method of testing found the toy to be within the 60 parts per million held to be safe by government standards.

In reaction to the hamster fluff, CPSC spokesman Scott Wolfson said, "The Consumer Product Safety Commission confirmed today that the popular Zhu Zhu toy is not out of compliance with the antimony or other heavy-metal limits of the new U.S. mandatory toy standard."

Good Guide provided a backhanded apology by "clarifying" their testing methods. In a posting on the website, the group differentiated between the federal testing method and their own. They did not comment on which method was more accurate, only that they lead to different results.

So, the hamsters are keepers after all. The Los Angeles Times reports parents feel better about Zhu Zhu safety. Zhu Zhu owners such as Alicen Kovacic, 34, said they felt reassured. The paralegal from La Crescenta, who scored a Mr. Squiggles hamster after waiting for nearly six hours at a Toys R Us, had planned to take the toy back to the store before learning that it was safe. "I definitely feel relieved and I'm glad that it was looked into really quickly," Kovacic said. " I don't think I'm going to return it now."

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There is one group of people with job security in Silicon Valley these days, and that's the legal team at chip giant Intel. No sooner than a cease fire in the decades-old war with major rival AMD is announced, a new fight breaks out with the FTC over alleged anti-competitive practices. Oh, and there is a small matter to settle over unfair business practices with European regulators and a suit by New York AG Andrew Cuomo, but that's another story. Or two.

Today, the FTC announced that despite settlement talks with Intel, it has filed its complaint against the company, citing "illegal monopolization, unfair methods of competition and deceptive acts and practices in commerce." This broad language doesn't quite reveal what is likely to be the crux of the action, issues surrounding Intel's product pricing, whether it purposely designed its software to run better on computers containing its chips than on machines containing its competitor's products, and alleged threats it made to major computer suppliers (such as Dell and HP) to coerce them into using Intel chips in their products.

According to Keith Hylton, antitrust professor at Boston University's school of law, the FTC may have a tough time proving its case that Intel manipulated its prices to cut out competition. However the issue over design, which was the core of the United States' landmark case against Microsoft earlier this decade, will likely be more successful.

In addition to the allegations in the FTC's complaint, the Commission is concerned about where the empire will strike next. They have their eye on Intel's actions in the graphics processing unit (GPU) market and are concerned that Intel will take its monopolistic practices to this new arena. Needless to say, up and coming graphics chip maker Nvidia, "applaud[s] today's action by the U.S. Federal Trade Commission."

As always, Intel came out swinging. In its press release this morning, the company called the FTC case "misguided." Intel senior vice president and general counsel Doug Melamed added, "Settlement talks had progressed very far but stalled when the FTC insisted on unprecedented remedies – including the restrictions on lawful price competition and enforcement of intellectual property rights set forth in the complaint -- that would make it impossible for Intel to conduct business."

AMD had no comment.

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Non-Safety Related H1N1 Vaccine Recall

In CDC news announced today, vaccine maker Sanofi-Aventis has voluntarily recalled some of its H1N1 vaccines, not due to safety problems, but due to a lack of potency. The affected vaccines are found in pre-filled syringes prepared for children under age 3. In the on-going fight against the swine flu epidemic, about 800,000 doses of vaccine from the lots had been distributed to providers.

The four affected lots of the vaccine were found by the company during a quality assurance test. Although the strength of the vaccine is not at the clinical limit, both the Centers for Disease Control and the Food and Drug Administration agree that, "while the antigen content of these lots is now below the specification limit for the product, CDC and FDA are in agreement that the small decrease in antigen content is unlikely to result in a clinically significant reduction in immune response among persons who have received the vaccine." In plainer terms, the doses should still be effective enough to protect the child who received it from the H1N1 virus.

Children vaccinated from these lots will not need to be re-vaccinated.

As many have found, the flu vaccine has been in relatively short supply. Last week, the CDC said 85 million doses of the vaccine had been made available for distribution so far.

The CDC estimates that swine flu has killed 10,000 Americans since it appeared last March and put 200,000 more into the hospital. Children, young adults, people with medical conditions such as asthma, healthcare workers and caregivers for infants are all advised to get the vaccine.

For the full text of the CDC announcement, go to:

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The U.S. Consumer Product Safety Commission (CPSC) and the Window Covering Safety Council (WCSC) announced today a voluntary product recall to repair Roman shades and roll up blinds. The CPSC has received reports of 5 deaths and 16 near strangulations due to the cords on these window coverings. About five million Roman shades and about three million roll-up blinds are sold each year.

In fact, just last August we discussed another Roman shades recall following a strangulation death.

The CPCS has found the following dangers:

Roman Shades

A child can be at risk for strangulation with Roman shades when she places her neck between the exposed inner cord and the fabric on the back of the blind or when she wraps the cord around her neck.

Roll Up Blinds

Strangulations in roll up blinds can occur if the child's neck becomes caught in the cord lifting loop or if her neck is placed between the lifting loop and the blind material.

To prevent these types of harm to children from these window coverings, the CPSC urges all parents and caregivers to do the following:

  • Examine all shades and blinds in the home. Make sure there are no accessible cords on the front, side, or back of the product. CPSC and the WCSC recommend the use of cordless window coverings in all homes where children live or visit.
  • Do not place cribs, beds, and furniture close to the windows because children can climb on them and gain access to the cords.
  • Make loose cords inaccessible.
  • If the window shade has looped bead chains or nylon cords, install tension devices to keep the cord taut.

Shades an blinds included in the roller blinds and Roman shades recall have been sold at major retailers such as JC Penney, Walmart and Pottery Barn. Specific brands and retailers voluntarily recalling their products include:

West Elm of San Francisco, Calif. Jute/Poly Roman Shades; Pottery Barn, Pottery Barn Kids, and PBteen division of Williams-Sonoma Inc. of San Francisco, Calif.; International Merchandise of Columbus, Ohio, Deluxe Matchstick Roll-up Shades; Lotus & Windoware Inc., of Memphis, Tenn. ¼” Oval Roll-up Blinds; All Strong Industry (USA) Inc., of Ontario, Calif. Roman Shades; J. C. Penney Purchasing Corp. of Plano, Texas, Roman shades and roll-up blinds; Walmart Stores Inc., of Bentonville, Ark., roll-up blinds and Roman shades; Airtex Design Group Inc., of Minneapolis, Minn., Roman Shades.

For a more extensive list of these products, retailers and additional product recalls, go to:

You may receive a free repair kit by calling (800) 506-4636 or by going to:

Report incidents or injuries to the CPSC at:

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Are the Kids Alright? Beef Recall Missed School Lunches

The good news: an outbreak of salmonella bacteria related sickness last summer was correctly traced to a Beef Packers, Inc., plant in Fresno, CA and a recall of 825,769 pounds of ground beef was put in place. The bad news: at least 39 people in 11 states were sickened with salmonella related infections resistant to several antibiotics. The worse news: the recall did not apply to three batches of beef shipped by Beef Packers for school lunches. At that time, Beef Packers was the no. 7 ranked supplier of beef to schools.

The recall was announced by the government on August 6th, and covered only certain retailers. During the recall, all shipments of beef to schools were tested and one was found to contain the strain salmonella Newport. That one shipment was held back but the others, which tested negative, were shipped.

The difficulty with shipping meat under these circumstances is that a negative test may not mean the meat is clear of bacteria. James Marsden, a professor of food safety and security at Kansas State University, told USA Today that because salmonella is seldom distributed evenly in any lot of beef, "94% of the time, I won't find it even though it's there. Since one of the four lots tested positive, my recommendation would have been to include all four lots in the recall."

The government has a "zero tolerance" policy for E. coli and salmonella in beef headed out to become a school lunch. This means any sample that tests positive for either pathogen is rejected. Marsden calls the policy "courageous" and says that overall, food safety protections for schools perform well. However, this incident pointed up a weakness in the system. The government should have rejected all lots to be shipped during the recall, not matter what the test results showed. Marsden says the failure to do so was just "poor decision making."

Since competing its orders, Beef Packers has not bid on any further school contracts.

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Well, you knew it was only a matter of time. Anyone who saw or read about the CPSC report regarding the many problems in new houses constructed with imported Chinese drywall could see the federal lawsuit coming. And here it is, filed Wednesday in U.S. District Court in New Orleans against Knauf Plasterboard Tainjin Co. Ltd. The class of plaintiffs in this suit is comprised of over 2,100 people seeking relief from KPT's (allegedly) defective drywall.

As reported by the CPSC, homeowners with imported drywall in many southern states where new construction boomed after Hurricane Katrina, have had both problems with health issues such as head and breathing problems and property damage from corroding pipes and wires. KPT is dealing with litigation specifically in states like Louisiana, Florida and Alabama, because their drywall was imported only though Louisiana and Florida ports. There are other manufacturers of drywall believed to be causing problems in homes in 32 other states, as well as Puerto Rico and the District of Columbia.

The lead plaintiff in this class action just happens to be New Orleans Saints head coach Sean Payton, who behaved like a lawyer's dream client when he began having problems in with his home and family's health he believed was linked to the drywall. According to a report by ABC Action News, Payton and his family moved out of their home, built in 2005, and then took it apart. They took photos of the disassembled pieces as evidence and stored the components in a warehouse where KPT could inspect them.

Other cases are proceeding as well. In Virginia, action against Taishan Gyspum, a Chinese company that also manufactured problematic drywall is scheduled for early 2010. The lead counsel in the KPT case, Russ Herman, says an additional six hundred people were too late to be included in the federal suit in Louisiana, but he plans to include them in another complaint he will file overseas.

You can get information about issues with Chinese drywall by going to the CPSC Drywall Information Center found at: 

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Yippy-Ki-Yay, E. Coli Vaccine Tested on Cows!

Will a cow shot cure our national difficulties combating E. coli? It just might. Vaccines like the one recently approved by the Department of Agriculture may not totally wipe out the dangerous strain of E. coli bacterium called O157:H7, but in combination with the other safeguards already in place, it could substantially lessen the outbreaks that can sicken and kill. Since January of 2007, there were 52 recalls of beef due to E. coli, compared with only 20 in the three previous years.

Unfortunately for consumers, the approval of the vaccine by governmental agencies progressed at a truly bovine pace. Two vaccines have been developed commercially, one, made in the U.S. by a Minnesota company called Epitopix, and a second developed by Bioniche Life Sciences, a Canadian company. Both vaccines have been tied down by red tape pending approval, mainly because they straddle the border between animal and human health.

To illustrate, the Agriculture Department received its first application for an E. coli vaccine in 2001 and took until 2003 to declare it did not have jurisdiction to approve the medicine. The FDA did not feel it had jurisdiction either because it is not technically responsible for animal vaccines under federal law.

Finally in 2005, the Dept. of Agriculture agreed to oversee the approval process. Initially, the Department set an usually high success rate requirement of 90% on the vaccine, but relaxed its requirements after recalls of beef due to E. coli contamination spiked in 2007.

Dr. Kent McClure, general counsel of the Animal Health Institute, a pharmaceutical industry group, said that while the review took longer than the industry would have liked, the new legal clarity could pave the way for other food safety vaccines.

A large scale test of the vaccine is underway.

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Pelosi: "The Party's Over," New Bank Regs Pass House

Financial reform is one step closer after the House passed legislation concerning new regulations, agencies and oversight on a 223-202 vote. As Nancy Pelosi remarked, "We are sending a clear message to Wall Street, the party is over. Never again will reckless behavior on the part of the few threaten the fiscal stability of our people." This bill overall appears to be good news for the financial consumer, but there were a few things left undone as well. The bill does accomplish several things that will set up some strong new regulations and oversight abilities to reign in potentially risky financial activities. The following is a quick breakdown of the bill's main accomplishments:

  • Sets up the Consumer Financial Protection Agency, which will be responsible for the regulation of consumer products such as credit cards and mortgages.
  • Allows congress to audit the activities of the Federal Reserve.
  • Extends new regulation over derivatives, one type of financial product blamed for the current financial crisis.
  • Creates a new counsel to conduct oversight on major problems at large financial firms.
  • Gives regulators more powers to break up companies that have grown to big.
  • Give shareholders a right to a non-binding proxy vote on corporate pay packages.

The bill will also shift $1 billion of bailout money into federal neighborhood stabilization programs to develop abandoned or foreclosed homes and transfer $3 billion from the federal bailout program for emergency loans to prevent foreclosure.

What did the house fail to add to this bill? First, there will be no regulation of auto loans, one of the most common consumer loans. Another amendment, that would have given bankruptcy judges new powers to lower balances on mortgages in order to prevent homeowners from losing their homes in foreclosure, was also voted down and will not be included in the bill.

Still, President Obama believes the bill will help protect consumers overall. In a statement he said, "This legislation brings us another important step closer to necessary, comprehensive financial reform that will create clear rules of the road... ."

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CVS Pharmacy and Others Sued for Expired Goods in 3 States

The legal team at CVS Pharmacy, Inc., might need a little aspirin for the headache they are getting right about now; but they may want to check the expiration date on the bottle first. On November 30, Richard Blumenthal, Attorney General for the state of Connecticut, filed suit against CVS for selling expired food products and medicines. This suit is the third of its kind and follows settlements with Attorneys General Jerry Brown in California and Andrew Cuomo in New York.

California and New York, like Connecticut, filled suits centering around allegations of expired products which consumers would like to think they can rely upon, such as cough and allergy medicine, baby food and formula, children's motion sickness medicine and dairy products. Its not so hard for a consumer to identify expired milk, but baby formula might be a more difficult problem.

In New York, the Attorney General's office sued both CVS and Rite Aid, two of that state's larges chains, for selling expired food and medicine even after the AG's office issued an advisory. New York settled with Rite Aid in December 2008, for $1.3 million. CVS has agreed to pay $875,000 in penalties, costs, and fees. According to the agreement CVS will, among other things, refrain from selling expired products and commit to specific policies and procedures designed to prevent the sale of expired products. 

In California, AG Jerry Brown settled with CVS in June of this year. That settlement included a provision that allows customers to receive a $2 coupon if they find any expired products on the company's shelves. CVS will pay $975,000 in civil penalties and costs to the state.

In Indiana, as in the California case, there was also an issue and a suit over how CVS disposed of patient medical information. Indiana AG, Greg Zoeller, settled his state's suit this past July with both CVS and Walgreens over the way customer prescription records were handled, to wit; conveniently if recklessly, dumped in outdoor dumpsters. The Indiana AG's Office reports that federal laws, including the federal Health Insurance Portability and Accountability Act or HIPAA were also violated by this practice. The federal Office of Civil Rights also investigated and eventually reached its own settlement with CVS for $2.25 million in civil penalties. Perhaps CVS lawyers should pass the aspirin to Walgreens and Rite Aid.

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Supplement Safety Now is a website committed to supporting public action against "designer" steroids hidden in what some athletes believe to be safe dietary supplements. Supported by major sports organizations like the NFL, NBA and US Olympic Committee among many others, this website is hoping to alert consumers to the dangers of these so called natural dietary supplements and spur legislative changes that can help the FDA and other agencies control them.

Citing reports like that of the New York Times (Sept, 2009), the Supplement Safety Now Initiative (SSN) wants to illustrate the dangers of these supplements. As the Times repots, the FDA has already warned consumers that steroids and steroid-like substances can cause liver failure, kidney damage and other highly dangerous health problems. The Senate held hearings this past September regarding the dangers of steroids and how the FDA might better supervise the marketing of the substances which are considered a controlled substance by the federal government. SSN says that the current regulatory framework of the FDA was "developed years ago and could not foresee the proliferation of dangerous products under the guise of "healthy, nutritional supplements.""
Unlike drug companies, "natural" food companies do not have to go through FDA clearance before they go on the market and this loophole allows some companies to exploit this weakness in the system. As a result, there is no requirement for supplement manufacturers to prove a product's safety and efficacy prior to being sold to consumers. A 2007 study by HFL showed that 25 percent of U.S. supplements sampled contained unlisted steroids and 11 percent contained unlisted stimulants.Once products are on the market, it is difficult to get them back off again.

The problem as the SSN sees it is this: "Best estimates suggest that there are hundreds of supplement products currently available that contain one or more of approximately 20 to 25 designer steroids alone... The real issue is that unscrupulous companies are marketing supplements spiked with these dangerous substances and advertising them as healthy products." 

For a video from the FDA on this subject, go to:

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Game On: Lawsuit Takes on Social Gaming Ads

Virtual world, real scam. That's what a class action suit filed last month against game company Zynga and social networking giant Facebook says about gaming ads on Facebook. Lead plaintiff, Rebecca Swift, claims that she was fooled into accepting two special offers from advertisers to gain extra game credits for YoVille, one of the virtual world games developed by Zynga. Swift accepted the offers to aid her virtual world experience and was then hit with $200 worth of unauthorized paymentson her Visa. Her real one.

Filed in district court in San Francisco, the suit details how plaintiffs, to get to new gaming levels, sign up for the so-called "special offers." Some of those offers, such as an IQ test and green tea offer that Swift agreed to, automatically charge the game player. Game provider Zynga seems to be taking the issue seriously, but may not be doing enough to appease consumers who have already lost money. In a November 2nd post on his blog, Zynga CEO Mark Pincus acknowledged problems with "...'scammy' advertisers and the bad user experience they create. I agree...that some of these offers misrepresent and hurt our industry."Too little, too late?

In addition, last month Facebook temporarily suspended one of Zynga's new games, FishVille, while it investigated whether ads in the game violated the network's advertising guidelines. It seems both these actions indicate that the companies agree there is a real problem. Who actually may be responsible for it may take more time to sort out.

As the suit makes its way through the courts, it is best for consumers to be careful when looking at the special offers linked to social gaming on Facebook, MySpace and other sites. Although the Federal Trade Commission is charged with overseeing much of e-commerce, analyst Scott Steinberg tells USA Today that there is no governing body to specifically regulate the social-gaming industry, which puts the onus on developers to police themselves. "It comes down to a question of ethics." And at this time, the FTC is aware of the lawsuit but had no further comment. 

This suit may well disappear quickly. Zynga is looking at a possible IPO sometime next year. A class action suit on the books could seriously effect the stock price, and that would be game over for company execs.

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Fake Email Alert: Phony CDC Email About H1N1 Vaccination

As if the American consumer didn't have enough to be concerned about; mortgage loan modification scams, financial fraud, stroller recalls. Add this to the top of the list of things to be avoided, Swine Flu and now, phony emails about Swine flu. 

On December 1, the U.S. Centers for Disease Control and Prevention (the CDC) updated their list of health related rumors and hoaxes with a new warning about a fake email purporting to be from the CDC. This email claims that the CDC is implementing a state sponsored H1N1 vaccination program. The recipient is informed that anyone over the age of 18 must register a personal profile on the CDC website to participate. If a user opens the provided link, they are at risk of having malicious code or virus installed on their system.

Consumers should be aware that the CDC has not implemented a state sponsored vaccination program which would require anyone to register on their website.  On the actual CDC website, users are reminded of the following email security tips:

  • Do not follow unsolicited links and do not open or respond to unsolicited email messages.
  • Use caution when visiting un-trusted websites.
  • Use caution when entering personal information online.

Other Swine flu hoaxes and scams have appeared including fake vaccines and pills, disease preventing shampoos and miracle cures. You can report fraud to the Better Business Bureau, your state's Attorney General's office or other appropriate government agency. For more information, please see the resources listed below. 

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As discussed in FindLaw's Injured, a $100 million lawsuit has been filed by a paralyzed dancer against the agrobusiness giant Cargill, Inc. The lawsuit highlights a recent rash of tainted meat incidents. The victim ate a tainted beef patty from Sam's Club that was distributed by Cargill, Inc. She suffered severe injuries because of food poisoning from E. coli.

As discussed recently here,, Beef Packers, Inc., of Fresno, California has recalled over 800,000 pounds of ground beef products that may be linked to an outbreak of drug resistant salmonella.

That beef recall included beef that was repackaged and sold under different brand names at Sam's Club, Safeway and Vons in at least 9 states.

Recently, two people have died from tainted beef that carried the bacteria E. coli. The New York Times reports that the tainted beef contained E. coli. It was produced in western New York by Fairbank Farms and may have caused an E. coli outbreak of more than two dozen people.

The United States Department of Agriculture Food Safety and Inspection Service announced a news release of another beef recall -- this time Fairbury Steaks in Nebraska, has recalling 90 pounds of fresh ground beef products that may have been contaminated with E. coli. It is classified as a Class I Recall. The Health Risk is classified as High.  

These deaths and beef recalls illustrate a need for stricter inspections standards. The New York Times quotes Donna Rosenbaum, executive director of Safe Tables Our Priority, as saying, “To this day, contamination problems are not found by any checks on the products by companies. They’re found when people get sick, and that’s a failure in the system.”

In fact, there are slaughterhouses who will will only sell to grindhouses that agree not to test for E. coli. The New York Times reports that slaughterhouses fear that grindhouses that test for the pathogen and discover it, will spark a recall of meat that they sell to other grindhouses.

With the burger eaten by paralyzed dancer Stephanie Smith as an example, you can see what goes into a single burger here.

One thing is fairly certain, more beef recalls will come, hopefully without the need for someone to die or become paralyzed beforehand.

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Update: Should the Folding Stroller Recall Be Expanded?

Recently, consumers were notified on this blog, and at numerous other sources, that the Maclaren company had a recall placed on its folding or "umbrella" strollers. The Maclaren stroller recall came in reaction to complaints of finger-tip amputations of children who caught fingers in the stroller's hinge mechanism.

Consumer Report's Safety Blog instituted a follow up study of some of the other folding strollers on the market which have not yet been the subject of a recall. Most of the nine folding strollers CR informally tested, in addition to the Maclaren product, had the same type of hinge design which posed the same type of threat to small digits. CR illustrated this potential hazard with the ingenious use of a piece of Slim Jim jerky standing in for a finger. The results were not encouraging. In the entire batch tested, only one stroller had a hinge with a design that could prevent a trapped finger. 

Consumer Reports followed up with the Consumer Protection Safety Commission (CPSC) to ask why only Maclaren had been singled out for recall. CPSC states that Maclaren is the only stroller currently under recall because of the number and severity of the injuries reported. However, CPSC is currently investigating other brands of folding strollers for the same hazard.

The Maclaren company responded promptly to the recall and provided hinge covers to all consumers who requested them (in the US at least). Covers are also available at retailers who carry the strollers, and are currently being shipped with the new products.

Consumer Reports suggests makers of other folding strollers follow Maclarens' lead and design a similar protective device to cover the hinges on their products as well.  The best safety recommendation, however, is to have children stand away from the stroller when it is being folded or unfolded.

We'll see if this means a stroller recall for anyone besides Maclaren

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Unilever, the maker of Slimfast (canned diet drinks) has announced that there will be a Slimfast recall of over 10 million cans because of a possible bacterial contamination.

CNN reports that the diet cans may be tainted with the bacteria known as Bacillus Cereus, which causes food poisoning symptoms such as diarrhea, nausea and vomiting. The Centers for Disease Control and Prevention considers the bacteria as "usually self-limiting and not severe."

According to a press release by the U.S. Food and Drug Administration, this is a nationwide voluntary recall of ALL Slimfast ready to drink containers.

They outlined the recalled product as:

"The products are packaged in paperboard cartons and contain four, six or 12 steel cans that are 11 FL OZ (325 mL) each. Individual cans are also sold in certain retail outlets. The recall involves all Slim-Fast RTD products in cans, regardless of flavor, Best-By date, lot code or UPC number. A listing of all RTD recalled products is attached to this press release.

No other Slim-Fast products are affected by this recall. No Slim-Fast powdered shakes, meal bars, or snack bars are affected by this recall."

ABC News reports that Unilever spokeswoman Anita Larsen stressed that the recall involves only liquid products in cans and boxes -- not powdered shakes or diet bars.

The FDA says the recall was announced after an inspection done by Unilever. The inspection was done after several complaints from consumers.

The company asks consumers with recalled products "to discard them immediately and contact the company at 1-800-896-9479 for a full refund."

Update: No News from FDA on BPA

Consumers are still waiting for word on the latest update from the FDA regarding its position on the controversial chemical, bisphenol A, also known as BPA. As most consumers are aware, BPA is a chemical that is used in the lining of plastic bottles and in cans. As a result, most people have some exposure to low levels of BPA. FDA Commissioner Margaret Hamburg said earlier in the year that some updates in the FDA's position would take place by November 30. That didn't happen.

Since no word has come, it is possible the FDA is waiting on further information before making a stand. Sarah Vogel of the Johnson Family Foundation says the potential effects of BPA are complex. "You really want to have all the information in front of you."

The regulatory tussle over the use of BPA is on-going. It has been reported that National Institutes of Health will spend $30 million dollars over the next two years on studies relating to the safety of BPA.  However, some states, as well as Canada, have not waited on additional information from the scientific community, and have already banned BPA from baby bottles. 

Recent studies on rodents have shown that BPA can function like estrogen in the body. However, larger studies have found no reproductive problems in laboratory rats. Unfortunately for non-rodent species, a new study of men exposed to high levels of BPA during factory work have revealed significant problems with sexual dysfunction.

A spokes-person for the FDA told NPR that "an announcement will be forthcoming."

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The sky may not be falling, but maybe we should hear Chicken Little out. According to Consumer Reports, America still has a big problem with that little bird. To be more precise, Consumer Reports found a still much too high incidence of salmonella and campylobacter on fresh whole broilers purchased at stores nationwide. These two bacteria types are responsible for much of the foodborne illness we face.

The CDC estimates that salmonella and campylobacter from chicken and other sources effect 3.4 million Americans, sending 25,5000 to the hospital and killing as many as 500. The actual numbers of people sickened may be even higher however, as some do not seek care for their illness and even those who do, may not be accurately diagnosed. To make this issue a bit more worrisome, the CDC also reports that in about 20% of salmonella cases and about 55% of campylobacter cases, the bacteria have proved resistant to at least one antibiotic.

Fortunately for the chicken consuming public, Consumer Reports has been consistently testing store-bought chickens since 1998. Here are the results of Consumer Reports' most recent testing:

  • Campylobacter was in 62 percent of the chickens, salmonella was in 14 percent, and both bacteria were in 9 percent. Only 34 percent of the birds were clear of both pathogens. That's double the percentage of clean birds found in our 2007 report but far less than the 51 percent in our 2003 report.
  • Store-brand organic chickens had no salmonella at all, showing that it's possible for chicken to arrive in stores without that bacterium riding along. But as our tests showed, banishing one bug doesn't mean banishing both: 57 percent of those birds harbored campylobacter.
  • The cleanest name-brand chickens were Perdue's: 56 percent were free of both pathogens. This is the first time since we began testing chicken that one major brand has fared significantly better than others across the board. Most contaminated were Tyson and Foster Farms chickens. More than 80 percent tested positive for one or both pathogens.

The National Chicken Council responded to these results. In a statement issued November 30th, the NCC said, "Like all fresh foods, raw chicken may have some microorganisms present, but these are destroyed by the heat of normal cooking." Consumer Reports suggests consumers remain vigilante. CR recommends cooking chicken to at least 165° F, do not allow raw chicken or its juices to touch other food and wash hands thoroughly after handling the raw meat. Now, who's up for veggie burritos tonight?

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On Monday, Merck & Co., and the investors who filed securities suits against it, had their day in court. Investors in Merck are suing the company over the misrepresentation of the safety of Vioxx (or lack thereof) which allegedly caused them to pay an inflated market price for company stocks.

(To begin with, the risks associated with Vioxx are not at issue in this Vioxx suit. Vioxx has already paid out billions to settle claims by the people physically harmed by the drug. This case is simply about whether Merck also screwed its shareholders in its handling of the Vioxx debacle.)

The Supreme Court heard arguments from the parties centering around the question of whether the shareholders had waited too long to file their lawsuit. In federal court, the securities fraud statute of limitations deems that any lawsuits suit must be brought within two years of the time investors knew about or should have suspected fraud.

Here, Merck made a novel argument. Merck lawyers claimed that the shareholders' suit should be dismissed because they knew or should have known about the possible fraud committed by Merck as early as 2001, but instead, waited until 2003 to file suit. In September of 2001, the FDA sent a warning letter to the company, alleging misrepresentations regarding the drug's potential to increase a patients' risk of heart attack. On the other hand, Merck said, the investors don't have a enough evidence against the company to prove securities fraud.

Simply put, the shareholders should have known about the fraud that did not occur, and filed the suit earlier. This would mean that the plaintiffs should have known that Merck was lying as it denied the risks associated with Vioxx for years, but at the same time that the plaintiffs could not make a case that the company lied.

A tough sell, no doubt. 

Some of the judges were justifiably skeptical about this line of reasoning. Justice Anthony Kennedy told the Merck attorneys, "Companies can't have it both ways."  Justices Scalia and Ginsburg considered another distinction that might assist the shareholders, asking Merck lawyers whether the FDA letter demonstrated only "misrepresentations" on the part of Merck, not the out and out fraud that would start the securities fraud statute of limitations clock ticking.

Attorneys for the investors faced slightly less difficult questions. However, Justice Sotomayor asked why investors filed their suit a whole year before the Wall Street Journal article supposedly central to their case was even published. Mr. David Frederick, for the investors, replied that the initial suit was prompted by a Harvard study regarding increased heart attacks in Vioxx users and was actually amended later to include information from the WSJ article when it was available.

A decision is expected early next summer.

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CPSC Safety Study on Chinese Drywall Problems Released

Owners of new homes may have more to worry about than the mortgage. In a Press Statement released November 23rd, the Consumer Product Safety Commission (CPSC) announced results from a 51 home study it has completed regarding the effects of Chinese drywall. Homeowners in states across the country have reported both health problems and corrosive effects on metals and wiring in their homes which may now be linked to the presence of drywall imported from China. The CPSC's investigation centers on three main issues:

  1. evaluation of the relationship between the drywall and the reported health symptoms;
  2. evaluation of the relationship between the drywall and electrical and fire safety issues in the home; and
  3. the tracing of the origin and distribution of the drywall.

The CPSC safety study began in response to more than 2000 reports from 32 states, the District of Columbia and Puerto Rico from consumers and homeowners regarding Chines drywall problems. According to the CPSC, homeowners have reported health issues including mild symptoms such as itchy eyes, running noses and headaches, as well as more severe symptoms including bloody noses, sinus infections and asthma attacks. These health issues often disappear when the individual is away from home and reappear on returning home.

The material effects being linked to the drywall are mostly corrosive issues with metal, pipes and wires in the home. Some homeowners have reported problems with air conditioning units, appliances and non-insulated copper wiring. The CPSC's Press Statements says, "We now can show a strong association between homes with the problem drywall and the levels of hydrogen sulfide in those homes and corrosion of metals in those homes." The CPSC is continuing to investigate potential issues with electrical and fire safety. 

Consumers largely report that their homes were built in 2006 to 2007, when an unprecedented increase in new construction occurred in part due to the hurricanes of 2004 and 2005. If you would like to report problems related to drywall to the CPSC, you may fill out an online form at: h, or call toll-free at 1-800-638-2772 or send an e-mail to

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