The Ninth Circuit has granted an en banc rehearing of its September 2017 decision to block a San Francisco ordinance requiring health warnings on sugar-sweetened beverages (SSBs) on the grounds that it unduly burdened and chilled speech protected by the First Amendment. Am. Beverage Ass’n. v. City & Cty. of San Francisco, No. 16-16072 (9th Cir., entered January 29, 2018). The September ruling overturned a 2016 district court decision determining that the city’s interest in public health and safety was a reasonable basis to enforce the ordinance, which required black-box warning labels on all advertising for SSBs that could take up as much as 20 percent of the advertising space. In addition, the Pennsylvania Supreme Court has agreed to hear a challenge to Philadelphia’s SSB tax that claims the 1.5 cent-per-ounce tax violates state law; the challengers allege that because the tax is levied on distributors and ultimately borne by…

The Canadian Plastic Bag Association (CPBA) has petitioned a British Columbia court to quash a “checkout bag regulation bylaw” passed by the city of Victoria, arguing the municipality does not have the legal authority to enact the rule. Canadian Plastic Bag Ass’n v. City of Victoria, No. S-180740 (S.C.R. British Columbia, filed January 22, 2018). On January 18, 2018, the Victoria City Council adopted a bylaw that prohibits businesses from providing single-use plastic shopping bags to customers and mandating them to charge from C$.15 for paper or C$1 for reusable bags. CPBA alleges that the city’s municipal powers are defined by British Columbia’s Community Charter, Spheres of Concurrent Jurisdiction—Environmental and Wildlife Regulation and the Environmental Management Act; taken together, the group argues, the provincial laws do not authorize individual municipalities to “regulate, prohibit or impose requirement[s]” related to either solid waste management or the sale or dispensing of plastic bags.…

A Florida magistrate has recommended that a district court deny Chipotle Mexican Grill Inc.’s motion for $1.5 million in attorney’s fees and costs after the company was granted summary judgment against claims that its advertising misled consumers into believing its food products only contained ingredients free of genetically modified organisms (GMOs). Reilly v. Chipotle Mexican Grill, Inc., No. 15-23425 (S.D. Fla., report and recommendation filed January 26, 2018). Although Florida’s Deceptive and Unfair Trade Practices Act (FDUPTA) permits prevailing parties to recover costs and fees, the magistrate noted that the trial court has broad discretion to consider various factors, including: (i) the scope and history of the litigation; (ii) the ability of the non-prevailing party to satisfy an award; (iii) whether an award of fees would deter similar litigants; (iv) the merits of the respective positions; and (v) whether the claim was brought to resolve a significant legal issue. The…

The U.S. Court of Appeals for the Ninth Circuit has vacated and remanded a lower court’s grant of summary judgment in favor of Whole Foods Market Inc. in a trademark infringement case related to the company’s “Eat Right America” promotion. Eat Right Foods Ltd. v. Whole Foods Mkt., Inc., No. 15-35524 (9th Cir., entered January 29, 2018). Plaintiff Eat Right Foods (ERF), a New Zealand-based maker of organic foods, registered U.S. marks for “EatRight” and “Eat Right” in 2001 and 2003; ERF has also sold a line of gluten-free cookies to Whole Foods. In 2009, Whole Foods contracted with Nutritional Excellence, LLC, which previously did business as “Eat Right America,” to use a food-scoring system to advertise the nutritional value of products to shoppers. In early 2010, an ERF executive discovered Whole Foods using an “Eat Right America” promotion and contacted Whole Foods to suggest the grocery buy its brand…

The Washington Department of Ecology has reportedly fined Cooke Aquaculture $332,000 for violations of state water quality laws related to a net pen failure that released approximately 250,000 farmed Atlantic salmon into Puget Sound. Cooke initially blamed the failure on high tides coinciding with the August 2017 solar eclipse; state investigators determined that the pen collapsed because the company failed to clean and maintain the nets, reportedly finding that they were covered with more than 110 tons of mussels, clams and other marine organisms that increased tidal drag and overwhelmed the mooring systems. The state reports that about 57,000 of the escaped fish have been captured. Before the Puget Sound farm collapsed, Cooke reportedly applied to build a salmon farm in Washington’s Strait of Juan de Fuca. The state has terminated Cooke’s leases for both the Puget Sound location and a second location in Port Angeles and placed a moratorium on…

The Food Safety and Inspection Service (FSIS) of the U.S. Department of Agriculture has denied a petition from the National Chicken Council seeking to waive the line speed limit of 140 birds per minute in processing plants. FSIS told the council that processors of young chicken are permitted to run at higher speeds if they were one of 20 participants in a New Poultry Inspection System pilot study operating under a Salmonella Initiative Program (SIP) waiver. During the pilot program, participants demonstrated that they could maintain process control at line speeds up to 175 birds per minute and were capable of "consistently producing safe, wholesome and unadulterated product" and "meeting pathogen reduction and other performance standards.” The agency's letter indicated that it would consider granting additional SIP waivers but would not grant waivers that would allow processors to operate without maximum line speeds.

A California federal court has refused to dismiss a trademark infringement and right of publicity lawsuit filed by the estate of Thelonious Monk against a craft brewery selling “Brother Thelonious Belgian Style Abbey Ale,” finding the estate sufficiently pleaded all causes of action. Monk v. North Coast Brewing Co., No. 17-5015 (N.D. Cal., entered January 31, 2018). Monk’s son had agreed to allow North Coast Brewing Co. to use the musician’s name, likeness and image on the ale in exchange for the brewery’s donation of a portion of the profits to the Thelonious Monk Institute of Jazz, but he allegedly revoked his consent because the brewer extended the use to apparel and other merchandise. The court found plausible that the estate had a protectable interest in Monk’s name, image and likeness and that it had alleged enough facts to support a possible finding of likelihood of confusion. Although it noted…

A California federal court has ruled that plaintiffs alleging they might purchase Carrington Tea Co.'s coconut oil products in the future have established standing sufficient to withstand a motion to dismiss. Zemola v. Carrington Tea Co., LLC, No. 17-0760 (S.D. Cal., entered January 24, 2018). The court had previously determined that the plaintiffs lacked standing to pursue an injunction because they failed to allege they would purchase the products in the future, but the U.S. Court of Appeals for the Ninth Circuit later ruled in an unrelated case that plaintiffs can seek injunctions if they plausibly allege that they "will be unable to rely on the product’s advertising or labeling in the future, and so will not purchase the product in the future,” or that they "reasonably, but incorrectly" assume that the product had been improved. Because one plaintiff alleged that he would like to purchase Carrington’s products in the…

Barcel USA, maker of Takis chips, faces a putative class action filed by a plaintiff alleging that four-ounce bags of Zombie and Guacamole tortilla chips contain as much as 64 percent nonfunctional slack-fill. Morrison v. Barcel USA, LLC, No. 18-531 (S.D.N.Y., filed January 22, 2018). The plaintiff compared the Takis bags to similarly sized bags of Doritos chips, which allegedly contain 33 percent slack fill. She alleges that her economic injury was equivalent to the proportion of the purchase price she paid for the slack-fill. Claiming deceptive and unfair trade practices, false advertising and common-law fraud, the plaintiff seeks class certification, injunctive relief, restitution, disgorgement, damages, corrective advertising and attorney’s fees.

A consumer has filed a putative class action alleging PVK Inc. mislabels Scarpetta pasta sauces as containing “No Preservatives” despite including citric acid on the ingredient list. Jocelyn v. PVK Inc., No. 18-427 (E.D.N.Y., filed January 22, 2018). The plaintiff alleges that she relied on the representation on the container and would not have purchased the sauce had she known it contained preservatives. Claiming deceptive and unfair trade practices, false advertising and common-law fraud, the plaintiff seeks class certification, injunctive relief, restitution, disgorgement, damages, corrective advertising and attorney’s fees.

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