Tag Archives California

Ferrara Candy Co. has agreed to pay $2.5 million to settle a putative class action alleging its candy boxes contained an unnecessary amount of slack fill. Iglesias v. Ferrara Candy Co., No. 17-849 (N.D. Cal., motion filed May 10, 2018). Under the agreement, Ferrara will "modify its fill level quality control procedures and target fill levels to at least 75% for theater box Products, and at least 50% for bag-in-a-box Products." In addition, the company will pay $2.5 million into a common fund; class members may submit claims for an unlimited number of purchases, but recovery for claims without proof of purchase will be capped at $7.50 per member. The named plaintiff will receive an incentive award of $5,000, and attorney's fees will be capped at 30 percent of the common fund, or about $522,000.

A California appeals court has affirmed a lower court's dismissal of a lawsuit asserting that Sutter Home Winery Inc.'s wine should feature a warning about arsenic content pursuant to the state's Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Charles v. Sutter Home Winery Inc., No. B275295 (Cal. App. Ct., 2nd Dist., entered May 9, 2018). While Sutter Home's wines feature the "safe harbor" alcohol warning pertaining to cancer and birth-defect risks, the plaintiffs argued that the labels should also reference risks associated with consuming inorganic arsenic. Failing to disclose the inorganic arsenic level, the plaintiffs asserted, amounted to a Prop. 65 violation. "Plaintiffs contend the safe harbor warning for alcoholic beverages is incomplete because it does not alert consumers to the presence of inorganic arsenic, and by this omission, the warning misleads consumers into believing their exposure is limited to a single listed chemical, alcohol," the…

A consumer has filed a putative class action alleging Trader Joe's Co. falsely advertises its Sour Gummies by failing to disclose that the product contains d-l-malic acid. Wong v. Trader Joe's Co., No. 18-0869 (S.D. Cal., removed to federal court May 4, 2018). The plaintiff asserts that under California law, "any artificial flavor must be identified on both the front-of-package label and the product ingredient list. Defendants fail to do either." According to the complaint, "Trader Joe's maintains a pervasive national marketing campaign guaranteeing that all its house-brand products are only naturally flavored," including the statement "when you see our name on a label, you can be assured that the product contains: YES quality ingredients NO artificial flavors." Alleging unfair competition, false advertising and negligent misrepresentation, the plaintiff seeks class certification, damages, corrective advertising and attorney's fees. In addition, Trader Joe's has filed a notice of opposition to an application for the…

Ruling that the plaintiff’s claims are preempted by the Organic Foods Production Act (OFPA), a federal court in California has dismissed a putative class action alleging Danone North America's Horizon Organic milk is not organic because it contains DHA. Brown v. Danone N. Am. LLC, No. 17-7325 (N.D. Cal., entered May 1, 2018). Noting that the Ninth Circuit has not considered whether the OFPA preempts state law challenges that "call into question whether organic products were properly certified as organic,” the court sided with decisions from the Eighth and Second Circuits holding that such challenges are preempted. “The labels clearly state that the milk is 'organic' and that the milk contains DHA, and the labels bear the United States Department of Agriculture (USDA) organic certification logo," the court found. "The USDA database publicly shows that Horizon Organic milk with DHA is currently certified organic by the USDA, and has been…

Plaintiffs in California and New York have filed a putative class action alleging Clif Bar & Co. “omits, intentionally distracts from, and otherwise downplays" the "high added sugar content” of Clif Classic and Clif Kid bars. Milan v. Clif Bar & Co., No. 18-2354 (N.D. Cal., filed April 19, 2018). The complaint asserts that the bars contain high amounts of added sugar—“a chronic liver toxin”—and alleges that excess sugar consumption can lead to several conditions, including metabolic syndrome, Type 2 diabetes, obesity, high triglycerides and hypertension. The plaintiffs allege that Clif “employs a strategic marketing campaign intended to appeal to customers interested in healthful foods in order to increase sales and profits, despite that the high-sugar bars are detrimental to health.” By emphasizing “nutritious” and “organic” ingredients as well as the lack of high-fructose corn syrup and genetically modified organisms, the company allegedly fails to disclose that Clif Classic and…

The maker of Jack Daniel’s has filed suit against two Texas companies alleging they infringed the Tennessee whiskey’s trademark and trade dress by selling a line of whiskies in similarly shaped bottles with similar labeling. Jack Daniel’s Props., Inc., v. Dynasty Spirits, Inc., No. 18-2400 (N.D. Cal., filed April 20, 2018). The complaint alleges that Tennessee whiskey has been sold under the Jack Daniel’s mark “continuously since 1875, except during Prohibition” and is sold in a “square bottle with angled shoulders, beveled corners, and a ribbed neck, a black cap, a black neck wrap closure with white printing bearing the OLD NO. 7 mark, and a label with a white on black color scheme bearing the JACK DANIEL’S mark depicted in arched lettering at the top of the label [] and the word ‘Tennessee’ depicted in script.” The competitor whiskies “all feature a square bottle with angled shoulders, beveled corners…

The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) is accepting public submissions of information relevant to the assessment of carcinogenicity of two chemicals—gentian violet and N-nitrohexamethyleneimine—that the agency is considering for inclusion on the Safe Drinking Water and Toxic Enforcement Act (Prop. 65) list. Hazard identification materials for each of the chemicals will be presented at meetings of OEHHA’s Carcinogen Identification Committee. Public comments will be accepted through May 21, 2018.

A California federal court has dismissed a putative class action against Dr Pepper Snapple Group without prejudice, finding the plaintiff may be able to amend her complaint to “plausibly allege” that aspartame causes weight gain. Becerra v. Dr Pepper Snapple Grp., No. 17-5921 (N.D. Cal., entered March 30, 2018). Although the plaintiff is not required to “scientifically prove causation at the pleading stage,” the court found, the studies she cited “do not allege causation at all—at best, they support merely a correlation or relationship between artificial sweeteners and weight gain, or risk of weight gain . . .  [b]ut correlation is not causation, neither for purposes of science nor the law.” The court dismissed the plaintiff’s unfair competition claims, finding her “theory of deception fails to pass the ‘reasonable consumer’ test” because Diet Dr Pepper is not marketed as a weight-loss or weight-management product and is a “diet” product in relation…

The maker of Bertolli olive oil has agreed to pay $7 million to settle a class action alleging the company misrepresented the origin and quality of its products. Koller v. Med Foods, Inc., No. 14-2400 (N.D. Cal., motion filed April 3, 2018). Deoleo USA previously removed the contested phrase “Imported from Italy” from the challenged products and has agreed to avoid using similar phrases, including “Made in Italy,” unless the oil is made entirely from olives grown and pressed in Italy. In addition to paying the plaintiff class $7 million, the company will bottle its extra virgin olive oil in dark green bottles to prevent light degradation, shorten the “best by” period and disclose of the date of harvest.

A consumer has filed a putative class action alleging Pabst Brewing Company LLC's Olympia beer labels falsely imply the product is brewed from artesian water in Washington despite being brewed in a facility in Los Angeles. Peacock v. Pabst Brewing Co. LLC, No. 18-0568 (E.D. Cal., filed March 15, 2018). The complaint alleges that although Olympia was originally brewed with artesian water in Washington, Pabst shifted production to California after it acquired the company in 1999. The plaintiff further argues that the beer may be brewed using chlorinated municipal water, that the brewery’s water supply has previously been contaminated with industrial solvents and that two Superfund sites are located within three miles of the brewery. According to the complaint, Olympia's website credits the Washington water for its premium taste. Alleging violations of California consumer-protection statutes, the plaintiff seeks class certification, injunctive relief, corrective advertising, damages and application of the common fund…

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