Category Archives Litigation

The Center for Food Safety and the Center for Environmental Health have filed a lawsuit asserting that the U.S. Food and Drug Administration (FDA) has failed "to promulgate final regulations and complete actions by mandatory deadlines set by Congress in the Food Safety Modernization Act of 2011 (FSMA)." Ctr. for Food Safety v. Azar, No. 18-6299 (N.D. Cal., filed October 15, 2018). The organizations assert that FDA has failed to "classify and designate which foods that are classified as 'high-risk' for foodborne illness purposes" and "to create additional record keeping requirements for facilities handling such foods." The complaint argues that "retailers now have the available technology (e.g., blockchain) to 'identify the origin of certain produce shipments in as little as 2.2 seconds.' … In light of these advances in technology, FDA can no longer shirk the mandatory actions required of it by Congress to designate high-risk foods and issue a…

Two consumers represented by the same plaintiff's attorneys have filed lawsuits alleging food companies misleadingly label their products as natural because they contain malic acid. Morris v. Mott's LLP, No. 18-1799 (C.D. Cal., filed October 4, 2018); Clark v. Hershey Co., No. 18-6113 (N.D. Cal., filed October 4, 2018). The plaintiffs assert that Mott's Assorted Fruit Flavored Snacks and Brookside Dark Chocolate Acai & Blueberry are marketed as free from preservatives and artificial flavorings but contain d-l malic acid, "an undisclosed artificial flavor made from petrochemicals." Both complaints note that "the natural and unnatural forms of malic acid are considered 'GRAS' (generally recognized as safe) for use as flavorings in foods marketed to adults," but "the d-malic acid form, however, has never been extensively studied for its health effects in human beings." The plaintiffs each allege violations of California's consumer-protection statutes and seek class certification, injunctions, damages and attorney's fees.…

Three Nebraska farmers have pleaded guilty to charges of fraud stemming from the sale of grain misrepresented as organic. According to a Department of Justice press release, the men "admitted to growing grain between 2010 and 2017 that was not organic. Each further admitted that they knew the grain was being marketed and sold as organic, even though it was not in fact organically grown. The charging documents allege that, during the 2010 to 2017 period, each of the three farmers received more than $2.5 million for grain marketed as organic." Each defendant faces a possible 20 years in prison and a $250,000 fine.

A consumer has alleged that Apple & Eve markets its Switch Sparkling Juices as containing no added sugar or preservatives despite containing citric and ascorbic acids and having a "high calorie count when compared to competitors' products that do not have the 'No Sugar Added' claim." Reaves v. Apple & Eve LLC, No. 18-5728 (E.D.N.Y., filed October 12, 2018). The complaint asserts that consumers believe the juices to be "a low-calorie product" because of the "no sugar added" marketing message. "Consumers associate claims about the absence of sugar with lower calorie counts when there is no disclaimer stating otherwise," the complaint alleges. "The [U.S. Food and Drug Administration] has reached the same conclusion: 'Consumers may reasonably be expected to regard terms that represent that the food contains no sugars or sweeteners e.g., 'sugar free,' or 'no sugar,' as indicating a product which is low in calories or significantly reduced in…

A plaintiff has filed a putative class action alleging Iberia Foods Corp. misleads consumers by selling its oil as Extra Virgin Olive Oil despite containing 80 percent sunflower oil. Okoe v. Iberia Foods Corp., No. 18-9161 (S.D.N.Y., filed October 5, 2018). The front label of the product, the complaint alleges, features a dark green background with the phrase "Sunflower Oil &" in black text and "Extra Virgin Olive Oil" in gold, allegedly causing the sunflower oil disclosure to be "barely distinguishable from the background" and "readily overlooked by consumers." The plaintiff cites a number of sources—including the BBC, Quora, activationproducts.com and finecooking.com—to assert that sunflower oil is less desirable to consumers than extra virgin olive oil because of the purported health benefits of the latter. For allegations of fraud and violations of New York consumer-protection statutes, the plaintiff seeks class certification, damages, an injunction and attorney's fees.

Two plaintiffs have filed a putative class action alleging Post Consumer Brands sweetens its Honey Bunches of Oats cereals with "sugar, corn syrup, and other processed substances, and [they] contain only miniscule amounts of honey." Lima v. Post Consumer Brands LLC, No. 18-12100 (D. Mass., filed October 5, 2018). The complaint lists the alleged risks of consuming sugar to argue that Post intentionally misleads consumers into believing that Honey Bunches of Oats is healthful by implying that it is sweetened only or primarily by honey. "A product branded 'Honey Bunches of Oats' that pictorially conveys cereal being covered with honey and a bee in flight hardly means to a reasonable consumer that the product is mostly sweetened with sugar or other processed substances or, moreover, that it contains only a miniscule amount of honey," the complaint asserts. The plaintiff alleges violations of consumer-protection statutes in 35 states and seeks damages…

The U.S. Court of Appeals for the Seventh Circuit has upheld a Wisconsin law requiring butter sold within the state to bear a grade issued by a Wisconsin-licensed butter grader or the U.S. Food and Drug Administration. Minerva Dairy Inc. v. Harsdorf, No. 18-1520 (7th Cir., entered October 3, 2018). The Ohio dairy challenging the law alleged it violated the Due Process Clause, the Equal Protection Clause and the dormant Commerce Clause of the U.S. Constitution, but a lower court granted summary judgment in favor of Wisconsin. The appeals court first found that the statute does not violate substantive due process or equal protection because the law is “rationally related to at least two conceivable state interests”—consumer protection and promotion of commerce. Turning to the dormant Commerce Clause allegation, the court found that the law does not have a discriminatory effect on interstate commerce. The dairy argued that requiring out-of-state…

The Federal Circuit has affirmed a Trademark Trial and Appeal Board (TTAB) decision refusing to grant a trademark to Real Foods Pty Ltd. for “Corn Thins” and “Rice Thins,” finding the terms to be “merely descriptive.” Real Foods Pty Ltd. v. Frito-Lay N. Am. Inc., Nos. 17-1959, 17-2009 (Fed. Cir., entered October 4, 2018). Frito-Lay North America opposed Real Foods’ trademark application, but Real Foods argued both that the terms were not descriptive and that even if they were descriptive, they had acquired distinctiveness. The Federal Circuit found significant evidence to support TTAB’s conclusion that the terms are descriptive, noting that the first part of the terms is the primary ingredient and the second is the shape. “The composite marks are ‘merely descriptive’ because they ‘immediately convey[] knowledge of a quality or characteristic of the product[s],’ specifically the products’ main ingredients and thickness,” the court held. The court also found…

A consumer has filed a putative class action alleging that several ingredients in LaCroix sparkling water, which is marketed as “always 100% natural,” are “non-natural flavorings and synthetic compounds.” Rice v. Nat’l Beverage Corp., No. 2018-CH-12302 (Ill. Cir. Ct., Cook Cty., filed October 1, 2018). The plaintiff alleges that the ingredients are synthetic and therefore cause consumers harm. “For instance, limonene causes kidney toxicity and tumors, linalool is used as a cockroach insecticide; and linalool propionate is used to treat cancer,” the complaint asserts. The complaint garnered significant media coverage, including in CBS News, Los Angeles Times and USA Today. A nutritional scientist reportedly told CBS News, “These compounds are found in nature, mostly in fruit such as oranges, limes, strawberries, pineapples, bananas….so we consume these compounds every day if we eat any kind of fruit.” In addition, Snopes noted, “The chemicals identified in the lawsuit [] are both safe…

A consumer has filed a lawsuit alleging that he contracted Salmonella from beef supplied to a restaurant by JBS Tolleson Inc. Rozich v. JBS Tolleson Inc., No. 18-1929 (D. Nev., filed October 8, 2018). The plaintiff alleges his infection stemmed from an outbreak of Salmonella that resulted in JBS recalling nearly seven million pounds of beef on October 4, 2018. The complaint cites a July 2017 notice from the U.S. Department of Agriculture’s Food Safety and Inspection Service purportedly alleging a JBS facility president enabled “‘egregious’ and ‘inhumane’ practices with livestock.” The plaintiff seeks damages and costs for allegations of strict product liability, negligence and breach of warranty.

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