Tag Archives California

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 consumers have filed a putative class action alleging that Arizona Beverage Co.’s teas, energy drinks and fruit juices are misleadingly marketed as containing “no preservatives” despite containing citric and ascorbic acids. Kubilius v. Arizona Beverage Co., No. 18-9075 (S.D.N.Y., filed October 3, 2018). The plaintiffs assert that they paid a premium for the products believing them to be preservative-free but later discovered that the products contain citric and ascorbic acid, which allegedly “serve as preservatives by functioning as sequestrants, removing compounds and elements from their environment so as to slow the degradation of food and beverages.” The complaint also cites a declaration from a food scientist who asserts that “while citric acid and ascorbic acid can also be employed by a manufacturer that intends to impart taste, a greater quantity of these substances is required to impart taste than to preserve foods and beverages. … Even if imparting taste…

A California federal court has granted class certification to a group of consumers alleging that Chipotle Mexican Grill Inc. misrepresented its food as made without genetically modified organisms (GMOs). Schneider v. Chipotle Mexican Grill Inc., No. 16-2200 (N.D. Cal., entered September 29, 2018). Chipotle has faced a number of similar suits, but other iterations have been dismissed. The court found that the plaintiffs met each of the requirements for class certification, rejecting Chipotle's argument that each class member may have seen significantly different marketing messages. "Plaintiffs rely primarily on the advertisements and statements issued and installed in all of Chipotle's stores," the court found, noting that three advertisements supported the plaintiffs' claims. "Based on Plaintiffs’ theory that 'reasonable consumers understood Non-GMO to include meat and dairy ingredients that were not sourced from animals fed GM feed,' [] the Court finds that the representations made on these three in-store signs are…

Consumers have filed lawsuits alleging that companies misrepresent their products as "natural" because they contain d-malic acid. One lawsuit targets Ocean Spray Cranberries Inc., alleging it mislabels its juices as free from artificial flavors despite containing d-malic acid rather than the naturally occurring l-malic acid. Froio v. Ocean Spray Cranberries Inc., No. 18-12005 (D. Mass., filed September 24, 2018). The complaint further alleges that the juices contain furmaric acid, which is "manufactured from petrochemical feedstock, either benzene or butane, through chemical transformation to maleic anhydride." The plaintiffs argue that a "reasonable consumer understands Defendant's claims that the Products contain no 'artificial' flavoring to mean that the flavoring is derived from a natural source." For allegations of fraud, negligent misrepresentation, unjust enrichment and violations of New York and Massachusetts consumer-protection statutes, the plaintiffs seek class certification, damages, injunctive relief, restitution and attorney's fees. Two consumers have alleged that Neurobrands LLC also…

A consumer has filed a putative class action alleging that Stremick's Heritage Foods misrepresents its  Kern's juice as a "healthful, natural juice product made solely from fresh fruits" despite being "almost entirely sugar-water, with a small amount of fruit juice added for color and texture." Levin v. Stremick's Heritage Foods, No. 18-1748 (C.D. Cal., filed September 26, 2018). The complaint alleges that the juices "consist of 70% water and high fructose corn syrup, topped with 30% or less of the juice of the fruit for which the Products are named." The complaint also alleges that "pictorial representations" of "life-like" fruits on the packaging mislead consumers about the beverages' juice content. The plaintiff further argues that the products contain "massive amounts of refined sugar. The 'Apricot Nectar' Product, for example, contains 47 grams of sugar per serving—more than Grape Kool-Aid." According to the complaint, the juices are not healthful because excess…

Whole Foods Market Inc. has reportedly obtained a restraining order against Direct Action Everywhere, an activist group that was apparently planning a "week-long occupation" of a Whole Foods location in Berkeley, California. The group has previously targeted the company with protests challenging its "free-range" labels on chicken and alleging its vendors treat animals inhumanely on factory farms. The California Superior Court of Alameda County has reportedly restrained any member of Direct Action Everywhere from entering the Berkeley Whole Foods.

California Governor Jerry Brown has signed a law that will prohibit restaurants from giving patrons straws unless the patrons request them. Brown issued a signing statement indicating that the bill's purpose is to reduce plastic waste. "Ocean plastic is estimated to kill millions of marine animals each year," Brown states. "Nor are humans immune as microplastics were recently found in tap water around the world. Plastics, in all forms—straws, bottles, packaging, bags, etc.—are choking our planet. It is a very small step to make a customer who wants a plastic straw ask for it. And it might make them pause and think again about an alternative. But one thing is clear, we must find ways to reduce and eventually eliminate single-use plastic products."

Two California courts have dismissed lawsuits brought by a competitor alleging kombucha companies misrepresented the amount of sugar and alcohol in their products. Tortilla Factory LLC v. Rowdy Mermaid Kombucha LLC, No. 18-2984 (C.D. Cal., entered September 11, 2018); Tortilla Factory LLC v. Better Booch LLC, No. 18-2980 (C.D. Cal., entered September 13, 2018). In April 2018, Tortilla Factory filed several lawsuits alleging that a number of its competitors, including Rowdy Mermaid Kombucha and Better Booch, misrepresent the alcohol and sugar content in their beverages in violation of federal law. The court in Rowdy Mermaid found that Tortilla Factory did not suffer an injury from Rowdy Mermaid's conduct; while the plaintiff argued that the companies are "vying for the same dollars from the same consumers," it failed to argue that "the two companies' products are sold in the same stores, through the same channels, or even in the same geographic…

The U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit alleging that Del Taco LLC failed to provide "a conciliation agreement acceptable to the Commission" following allegations of discriminatory practices against female employees. EEOC v. Del Taco LLC, No. 18-1978 (C.D. Cal., filed September 17, 2018). Allegations include sexual harassment of female employees by male shift leaders and general managers. The complaint asserts that after Del Taco was notified of the alleged harassment, it "failed to take prompt and effective remedial action reasonably calculated to end the harassment," including "failing to conduct an adequate investigation," "failing to adequately discipline harassing supervisors and/or coworkers," "failing to follow complaint procedures and take sexual harassment complaints seriously" and "actively deterring employees from making sexual harassment complaints." EEOC seeks class certification for the female employees and asks the court to compel Del Taco to "institute and carry out policies, practices, and programs to…

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