Category Archives Litigation

The Ninth Circuit has vacated a 2017 Environmental Protection Agency (EPA) order allowing some uses of the pesticide chlorpyrifos, remanding the matter to the agency with directions to revoke all tolerances and cancel all registrations for the pesticide within 60 days. League of United Latin Am. Citizens v. Wheeler, No. 17-17636 (9th Cir., entered August 9, 2018.) Eleven plaintiffs and eight states acting as intervenors petitioned the court to review the order, arguing that the tolerances were inconsistent with the Food, Drug and Cosmetic Act (FDCA) in "the face of scientific evidence that [chlorpyrifos] residue on food causes neurodevelopmental damage to children ... a need for additional scientific research is not a valid ground for maintaining a tolerance that, after nearly two decades of studies, has not been determined safe to a ‘reasonable certainty.’” EPA argued that FDCA’s administrative process requirements deprive the court of jurisdiction until EPA issues a response…

The Center for Food Safety has filed a lawsuit alleging Dr. Praeger’s Sensible Foods Inc. violates California's Safe Drinking Water and Toxic Enforcement Act (Prop. 65) by failing to warn consumers that its children’s food products contain levels of acrylamide in excess of 0.2 micrograms per day. Ctr. for Food Safety v. Dr. Praeger’s Sensible Foods, Inc., No. RG18915114 (Cal. Super. Ct., Alameda Cty., filed August 1, 2018). The advocacy group alleges that four of the company’s frozen vegetable products contain levels of acrylamide outside of safe-harbor limits and that none of the products carry the “clear and reasonable warning” required by Prop. 65. The complaint seeks injunctive relief, civil penalties and attorney’s fees.

A federal court in Missouri has denied class certification in a slack-fill action against Just Born Inc., ruling that the plaintiff was unable to represent one proposed class and that individual issues would predominate for the other two. White v. Just Born, Inc., 14-4025 (W.D. Mo., entered August 7, 2018). Alleging that boxes of Mike and Ikes and Hot Tamales were underfilled, the plaintiff sought certification of three classes: a Missouri Merchandising Practices Act (MMPA) class, an unjust enrichment (Restatement) class and an unjust enrichment (Appreciation) class. First, the court found that the Restatement class did not include Missouri residents, so the Missouri plaintiff could not serve as a representative of the potential class members. “In an attempt to account for variations in states’ unjust enrichment laws, [the plaintiff] seeks certification of two separate unjust enrichment classes,” the court held. “In doing so, however, [the plaintiff] defined himself out of one.”…

Pepperidge Farms Inc. faces a lawsuit alleging that a woman became ill with Salmonella gastroenteritis after eating the company’s Goldfish crackers, which purportedly contained contaminated dry whey powder. Finch v. Pepperidge Farms, Inc., No. 18-152 (N.D. Miss., filed August 8, 2018). The plaintiff alleges that she bought and ate the Goldfish on July 19, 2018, became ill that evening, and tested positive for Salmonella one week later. Pepperidge Farm issued a recall of four varieties of Goldfish after its supplier notified it of potential contamination. Claiming manufacturing-defect strict liability, failure-to-warn strict liability, negligence per se, negligence and breach of warranties, the plaintiff seeks damages and attorney’s fees.

A California federal court has denied a motion to dismiss a putative class action alleging deceptive labeling and advertising of Yogi Green Tea Kombucha, ruling that whether a reasonable consumer believes that kombucha should contain live organisms is a question of fact. Cohen v. East West Tea Co. LLC, No. 17-2339 (S.D. Cal., entered August 2, 2018). The plaintiff alleged that East West Tea falsely labels and advertises its product as kombucha because it purportedly contains no “live organisms." The court found that the parties' definitions of “kombucha” differ and that a reasonable consumer may or may not expect to find live organisms in kombucha. Whether a practice is deceptive is not a matter to be resolved by a motion to dismiss, the court held, noting “mixed case law on whether ambiguity regarding the definition of a word merits a motion to dismiss.”

The Center for Food Safety and the Center for Environmental Health have filed a lawsuit alleging that the U.S. Department of Agriculture (USDA) failed to comply with mandatory deadlines established by the 2016 Federal Bioengineered Food Disclosure Standards Act, which would require labeling of foods that contain genetically modified organisms (GMOs). Ctr. for Food Safety v. Perdue, No. 18-4633 (N.D. Cal., filed August 1, 2018). The act's statutory deadline for the completion of final regulations implementing the statute and establishing the national disclosure standard was July 29, 2018. The complaint alleges that “[t]he statute preempted state laws requiring [genetic engineering (GE)] labeling, but until USDA issues the regulations, the statute is an empty vessel: there can be no federally required disclosures.” “Due to the lack of mandatory labeling, many American consumers are under an incorrect assumption as to whether the food they purchase is produced with GE,” the plaintiffs allege.…

The Eleventh Circuit has reversed the dismissal of a lawsuit against Dunkin’ Donuts LLC, ruling that a blind plaintiff who alleged the company’s website was not compatible with screen-reading software showed a plausible claim for relief under the Americans with Disabilities Act (ADA). Haynes v. Dunkin’ Donuts LLC, No. 18-10373 (11th Cir., entered July 31, 2018). The Southern District of Florida previously dismissed the complaint, reasoning that the plaintiff had "failed to allege a nexus between the barriers to access that he faced on the website and his inability to access goods and services at Dunkin’ Donuts’ physical store." The appellate panel found that “the prohibition on discrimination is not limited to tangible barriers that disabled persons face but can extend to intangible barriers as well. ... It appears that the website is a service that facilitates the use of Dunkin’ Donuts’ shops, which are places of public accommodation. And…

A New York federal court has dismissed a putative slack-fill class action against Tootsie Roll Industries, finding that the packaging of Junior Mints contains sufficient information for consumers to determine its volume and that “[t]he law simply does not provide the level of coddling plaintiffs seek. ... The court declines to enshrine into the law an embarrassing level of mathematical illiteracy." Daniel v. Tootsie Roll Industries LLC, No. 17-7541 (S.D.N.Y., entered August 1, 2018). The court found that “consumers can easily calculate the number of candies contained in the Product boxes simply by multiplying the serving size by the number of servings in each box, information displayed in the nutritional facts section on the back of each box.” In addition, the court rejected arguments that consumers depend on the size of the candies as shown on the package. Moreover, the court found that the plaintiffs did not show that the…

The Trademark Trial and Appeal Board (TTAB) has dismissed The Wonderful Co.'s opposition to Comrade Brewing Co.'s application to register "Superpower" as a mark used in relation to beer. Wonderful Co. v. Comrade Brewing Co., No. 91230877 (T.T.A.B., entered August 2, 2018). The Wonderful Co. uses its mark "Antioxidant Superpower" to describe its POM pomegranate juice, which it alleged will be sold in the same aisle as beer in some stores. TTAB was unpersuaded, finding that consumers are not likely to view fruit juices and beer as produced by a common source under one brand's mark. TTAB also found the term "antioxidant superpower" to be "somewhat suggestive of the identified goods, and thus conceptually is somewhat weaker than an arbitrary mark."

Multiple consumers have reportedly filed lawsuits against Chipotle Mexican Grill following the distribution of allegedly contaminated food that purportedly resulted in more than 700 customers becoming ill. The cause of the illnesses is unknown, as E. coli, Salmonella, norovirus and shigella tests reportedly returned negative results. One plaintiff seeks $25,000 in damages for his medical treatment.

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