Tag Archives California

Bumble Bee Foods LLC has agreed to settle a proposed class action alleging the company’s labels indicate its Medium Red Smoked Salmon Fillet in Oil product contains wild-caught smoked salmon despite actually containing farm-raised salmon with artificial smoke flavoring. Rodriguez v. Bumble Bee Foods LLC, No. 17-2447 (S.D. Cal., motion for settlement filed February 1, 2018). Under the terms of the agreement, Bumble Bee will begin repackaging the product in the second quarter of 2018, specify the salmon is “smoke-flavored,” omit claims that it is “premium” or “medium red” and omit images that suggest the fish was wild-caught. The motion for settlement seeks a hearing date for a motion that will specify the incentive award, the amount of attorney’s fees, and costs.

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…

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…

A California federal jury has awarded $710,001 to Grumpy Cat Ltd., which had alleged that a beverage company infringed its copyright and trademarks. Grumpy Cat Ltd. v. Grenade Beverage LLC, No. 15-2063 (C.D. Cal., verdict entered January 23, 2018). The dispute arose after Grumpy Cat licensed its trademark to Grenade  Beverage LLC for a line of iced-coffee products; Grumpy Cat filed suit when it learned that Grenade was also using Grumpy Cat’s likeness on coffee products and apparel—which fell outside the scope of the companies' agreement—and had registered the domain name grumpycat.com. The jury awarded Grumpy Cat $1 for breach of contract and $710,000 for copyright and trademark violations. The parties agreed before trial that the court would rule on the cybersquatting and accounting claims as well as Grenade’s counterclaims for declaratory relief for ownership and non-infringement of trademark, copyright and domain name.

A plaintiff has filed a lawsuit alleging Bumble Bee Foods’ Medium Red Smoked Salmon Fillet in Oil is neither medium red wild coho salmon nor smoked. Rodriguez v. Bumble Bee Foods Inc., No. 17-2447 (S.D. Cal., filed December 6, 2017). The complaint asserts that the term “medium red” is commonly used to describe wild coho salmon, which is often fished in Alaska and the Pacific Northwest, and that the product label shows an image of a salmon “jumping from water with snow-capped mountains and evergreens in background, which is evocative of Alaska.” The salmon used in Bumble Bee’s product, the plaintiff argues, is “low-quality” farm-raised Chilean coho salmon dyed red to resemble wild-caught fish. The complaint alleges Bumble Bee discloses that the company’s oyster and smoked trout products are farm-raised but omits the farm-raised disclosure on the salmon product. In addition, the complaint alleges the salmon is not smoked but rather…

A plaintiff has filed a putative false advertising class action alleging that East West Tea Co.'s kombucha tea bags cannot feasibly be kombucha, which is a fermented product with live cultures. Cohen v. East West Tea Co., LLC, No. 17-2339 (S.D. Cal., filed November 17, 2017). The plaintiff asserts that she bought the tea product because it was labeled “organic kombucha” and expected the product to provide the health benefits of probiotic bacteria found in kombucha. The complaint argues that because kombucha is composed of fermented steeped tea, live yeast and bacterial organisms, it cannot be “dried and stuffed into a tea bag.” In addition, the complaint asserts that the company’s pasteurization process destroys the live organisms that provide kombucha’s purported health benefits. Claiming violations of California’s consumer-protection statutes and breach of express warranty, the plaintiff seeks class certification, injunctive relief, damages, corrective advertising and attorney’s fees.

A consumer has filed a projected class action alleging Ocean Spray Cranberries’ CranGrape and CranApple juice products contain artificial flavorings despite bearing “No High Fructose Corn Syrup, Artificial Colors or Flavors" labels. Hilsley v. Ocean Spray Cranberries, Inc., No. 17-2335 (S.D. Cal., removed to federal court November 16, 2017). Originally filed in San Diego County, the complaint alleges that CranApple contains synthetic dl-malic acid made from petrochemicals but lists “malic acid”—a generic term that can be used to describe a "naturally occurring compound"—on the label. The plaintiff further alleges that CranGrape contains fumaric acid, also synthesized from petrochemicals, and that both fumaric and malic acid are used to enhance flavor. Claiming violations of California’s consumer-protection statutes as well as breach of warranties, the plaintiff seeks class certification, disgorgement, restitution, punitive damages, injunctive relief, corrective advertising and attorney’s fees.

Two consumers have filed a putative class action alleging Mondelez International's Belvita breakfast foods are marketed to consumers interested in “health and wellness” but contain between 8 and 14 grams of added sugar per serving. McMorrow v. Mondelez Int’l, No. 17-2327 (S.D. Cal., filed November 16, 2017). The complaint asserts that the packaging and labeling claims are deceptively marketed to consumers as "healthy" but contribute to excess sugar consumption. Alleging violations of California’s consumer-protection laws and breach of warranties, the plaintiffs seek class certification, injunctive relief, corrective advertising, damages, restitution and attorney’s fees.

Candy company Sugarfina has filed a lawsuit alleging that Sweitzer LLC copied its “innovative, distinctive, and elegant product and packaging” as well as its "types of candy" and “protectable names.” Sugarfina, Inc. v. Sweitzer LLC, No. 17-7950 (C.D. Cal., filed October 31, 2017). Sugarfina asserts that it has approximately 140 lines of candy, presented in “museum-quality Lucite that emphasizes the artisanal and rarefied quality of a gourmet small-portion tasting experience,” and that Sweitzer copied the “size, shape, color or color combinations, texture, graphics and sales techniques” in its candy packaging and store designs. Claiming trade-dress infringement under the Lanham Act, federal and common law trademark infringement, unfair business practices, patent and copyright infringement, Sugarfina seeks damages, corrective advertising, accounting, restitution and attorney’s fees. Sugarfina filed a similar infringement claim against Sweet Pete's in June 2017.

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