An April 21, 2011, New York Times article targets the online marketing techniques allegedly used by food companies “to build deep ties with young consumers,” claiming that “multimedia games, online quizzes and cellphone apps” have become “part of children’s daily digital journeys, often flying under the radar of parents and policy makers.” The Times highlights the efforts of the Campaign for a Commercial-Free Childhood (CCFC) and Yale University’s Rudd Center for Food Policy and Childhood Obesity, which have backed strict regulation in lieu of the current voluntary measures. “Food marketers have tried to reach children since the age of the carnival barker, but they’ve never had so much access to them and never been able to bypass parents so successfully,” said CCFC Director Susan Linn. According to the article, the groups have called for rules similar to those governing children’s TV that require “a buffer between ads and programs so that…

The company that makes gourmet cookies sold as “One Smart Cookie™” has filed a trademark infringement and unfair competition lawsuit against a company that makes organic cookies sold as the “Original Smart Cookie.” Jimmy’s Chocolate Chip Cookies, LLC v. Nature’s Select Food Group, LLC, No. 11-01 (D.N.J., filed April 15, 2011). According to the plaintiff, the defendant sought to register its mark, which the plaintiff opposed, and registration was refused. Still, the defendant allegedly continues to use the name “Original Smart Cookie.” The plaintiff alleges infringement of federal trademark registration, false designation of origin and unfair competition under state and federal statutes, and common-law unfair competition. Jimmy’s Chocolate Chip Cookies seeks injunctive relief, an accounting of profits, compensatory and punitive damages, and attorney’s fees and costs.

Clos LaChance Wines has filed a complaint in a California federal court seeking a declaration that “Mommy” is not a protected trademark when used on a wine label and that the company’s domestic wine products, “MommyJuice White Wine” and “MommyJuice Red Wine,” do not infringe defendant’s “Mommy’s Time Out®” imported wines. Clos LaChance Wines, LLC v. Selective Wine Estates, Inc., No. 11-1848 (N.D. Cal., filed April 18, 2011). Clos LaChance apparently began using its label in August 2010; it includes an image of a woman with four arms juggling a computer, house, cell phone, and teddy bear. Selective Wines, whose label contains an image of an empty chair facing a corner alongside a small table with a bottle and wine glass, purportedly sent a demand letter to Clos LaChance accusing it of infringing Selective’s trademark and demanding that Clos LaChance cease and desist from using the name “MommyJuice” in connection with…

A Florida resident has alleged in a putative class action that Kraft Foods and Hormel Foods deceive the public by selling their prepackaged retail sandwich meat products in a way that suggests they contain far less fat than they actually do. Kuenzig v. Kraft Foods, Inc., No. 11-00838 (M.D. Fla., filed April 18, 2011). The companies allegedly state on their product labels that the sliced ham, turkey and other deli-style meats are 95, 96, 97, or 98 percent fat-free and juxtapose this information with a calorie count per serving. According to the plaintiff, this leads consumers to believe that of the 50 calories in a serving, for example, less than 5 percent comes from fat. Because the products could actually derive one-half of their calories from fat, the plaintiff contends that health-conscious consumers “will continue to be surprised to learn that Products they’ve purchased—and perhaps have repurchased for years—are about ten…

A New York state court has determined that a company which made the butter flavoring chemical at issue in workplace exposure lawsuits succeeded to a predecessor’s insurance coverage rights. Int’l Flavors & Fragrances, Inc. v. St. Paul Prot. Ins. Co., No. 601723/08 (N.Y. Sup. Ct., decided April 11, 2011). Finding that a de facto merger had taken place, the court also determined that the company inherited its predecessor’s liabilities in the underlying diacetyl-exposure actions. A $30.4 million jury award involving one of the plaintiffs in an underlying action is discussed in Issue 361 of this Update.

A Florida court has reportedly denied the motion to dismiss filed by organic and natural foods grocery chain Whole Foods Market in a case alleging that the company sold frozen vegetables harvested in a polluted area by the forced labor of Chinese prisoners. Se. Consumer Alliance Inc. v. Whole Foods Market Group Inc., No. 2009-92727-CA-01 (Fla. Cir. Ct., 11th Cir.) decided April 20, 2011). The company purportedly certifies and sells the vegetables as organic. The plaintiffs, who are apparently seeking a declaration that the company violated deceptive marketing law, have twice amended their complaint to bring new claims, including deceptive trade practices and false advertising. Plaintiffs’ counsel Bruce Baldwin was quoted as saying, “They’re the biggest organic retailer in America with the biggest certifier in China working for them. They knew, but they kept selling the Chinese frozen vegetables as if there was no problem at all.” See Law360, April 21,…

Taco Bell® has launched a nationwide public relations campaign calling for an apology from the law firm that voluntarily dismissed a lawsuit alleging that the company misrepresented the beef filling in its taco and burrito products. Obney v. Taco Bell Corp., No. 11-00101 (C.D. Cal., notice of dismissal filed April 18, 2011). Additional information about the putative class action appears in Issue 379 of this Update. The company apparently launched the campaign “to make sure consumers know that it has not changed products, ingredients or advertising despite what the Beasley Allen law firm has claimed.” According to a news source, the firm said, “From the inception of this case, we stated that if Taco Bell would make certain changes regarding disclosure and marketing of its ‘seasoned beef’ product, the case would be dismissed.” Taco Bell® asks the attorneys, “Would it kill you to say you’re sorry?” See Taco Bell® News Release,…

U.S. attorneys in New York have reportedly secured court approval of a consent decree with three companies that allegedly exported meat containing vertebral column to Japan in violation of U.S. trade requirements. The settlement resolves an action filed in March 2011 alleging that the companies exported veal containing ineligible bone and tissue fragments, which action resulted in Japan closing its borders to all U.S. beef products for six months, purportedly costing the industry $500 million in losses. Details about the case appear in Issue 385 of this Update. Under the agreement, the companies neither admit nor deny the allegations,but they agree to “permanently provide additional access,record-keeping,and reporting in order to ensure ongoing compliance.” The decree alsoentitles the United States “to substantial andescalating monetary relief in theevent of future violations for the next three years--$10,000 for the first violation,$25,000 for the second,and $50,000 for each violation thereafter.” Thedecree allows the U.S.…

McDonald’s Corp. has filed a motion to dismiss a putative class action seeking to stop the company from advertising and selling to children its allegedly “unhealthy Happy Meals” with toys. Parham v. McDonald’s Corp., No. 11-00511 (N.D. Cal., motion filed April 18, 2011). Details about the lawsuit appear in Issue 375 of this Update. The company contends that the plaintiff lacks standing to sue under the unfair competition law, Consumer Legal Remedies Act or false advertising law and argues that the complaint is the Center for Science in the Public Interest’s “attempt to distort state consumer protection law beyond recognition” to stop McDonald’s from selling Happy Meals containing toys in California. According to the motion, the plaintiff does not allege physical harm, reliance on the company’s advertising (that is, “Plaintiff does not allege that her own children saw any particular advertisement or made a single purchase from McDonald’s”), or identify…

Maryland’s attorney general (AG), joined by the AGs of 17 states and the territory of Guam, have expressed to Pabst Brewing Co. concerns over the company’s “new flavored malt beverage, Blast by Colt 45,” characterizing it as a “flavored ‘binge in a can.’” In his April 21, 2011, letter, Attorney General Douglas Gansler alleges that selling a fruit-flavored beverage with an alcohol concentration of 12 percent in brightly colored 23.5 ounce cans, “poses a grave public safety threat and is irresponsible.” He contends that the target market includes underage consumers, “in violation of state law.” According to Ganlser, each can contains 4.7 servings of alcohol and, if consumed quickly as intended, an individual “will have engaged in binge drinking, putting himself or herself at risk of serious injury and other health and safety problems.” The AGs call on Pabst’s CEO to “take immediate steps to significantly reduce the number of servings…

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