The California legislature has passed a bill that would require retail food facilities to make the default beverages sold with children's meals "water, sparkling water or flavored water, as specified, or unflavored milk or a nondairy milk alternative, as specified." Flavored waters may not contain "added natural or artificial sweeteners," while nondairy milk alternatives must contain fewer than 130 calories. In addition, a restaurant's menu and advertisements must display the default beverages. The bill would "not prohibit a restaurant’s ability to sell, or a customer’s ability to purchase, an alternative beverage instead of the default beverage offered with the children’s meal, if requested by the purchaser of the children’s meal." The bill has been presented to Governor Jerry Brown for approval.
A California federal court has dismissed with prejudice a putative class action alleging that Diet Dr Pepper is falsely advertised as a weight-loss product. Becerra v. Dr Pepper/Seven Up, Inc., No. 17-5921 (N.D. Cal., entered August 21, 2018). The plaintiff alleged that the term “diet” leads consumers to believe the beverage is a weight-loss or weight-management product despite that aspartame could allegedly cause weight gain. The court, which previously dismissed the complaint three times, found implausible "that reasonable consumers would believe consuming Diet Dr Pepper leads to weight loss or healthy weight management absent a change in lifestyle.” The court held that the plaintiff again failed to plead facts that could pass a “reasonable consumer” test and that the plaintiff failed to sufficiently plead a causal link between aspartame and weight gain.
Jamba Inc. and Jamba Juice Co. face a putative class action alleging the company's advertising deceives and misleads consumers about the nutritional value and ingredients of its smoothie beverages. Turner v. Jamba, Inc., No. 18-5168 (N.D. Cal., filed August 23, 2018). The plaintiffs allege that Jamba's smoothies contain more sugars than typical sodas or soft drinks rather than being “simple and nutritionally on par with eating whole fruits and vegetables." In addition, the complaint asserts that the smoothies contain concentrated fruit juice blends—predominantly apple, pear and grape—rather than “whole fruits and veggies.” The plaintiffs also allege that the sherbets and frozen yogurts used in the smoothie blends contain "numerous additives," including sugar, corn syrup, caramel coloring, carrageenan, citric acid, guar gum, lactic acid, locust bean gum and pectin. Claiming violations of California’s and New York’s consumer-protection statutes, the plaintiffs seek class certification, declaratory judgment, injunctive relief, damages and attorney’s fees.
A plaintiff has filed two putative class actions alleging the manufacturers of “organic salt" violate consumer-protection laws against deceptive advertising because salt is an inorganic mineral that “cannot be identified as organic” pursuant to the National Organic Program. Garcia v. HimalaSalt-Sustainable Sourcing, LLC, No. 18-7410 (C.D. Cal., filed August 23, 2018); Garcia v. Frontier Natural Prods. Coop., No. 18-7457 (C.D. Cal., filed August 24, 2018). In both complaints, the plaintiff alleges that she paid a premium for the products—HimalaSalt's Himalayan salt and Simply Organic's flavored salts—because she believed them to be "more healthful than regular salt." Claiming violations of California’s consumer-protection statutes, the plaintiff seeks class certification, injunctive relief, restitution, damages and attorney’s fees in both cases.
A California federal court has granted certification to buyers of Kellogg Co.’s Raisin Bran, Frosted Mini-Wheats and Smart Start who allege they were misled about the health benefits of the products because they contain added sugar. Hadley v. Kellogg Sales Co., No. 16-4955 (N.D. Cal., San Jose Div., entered August 17, 2018). The complaint also contained an allegation about Nutri-Grain bars, but the court declined to certify that class. Kellogg argued that the plaintiffs did not meet the predominance standards for certification, asserting that most consumers did not see the challenged phrases “lightly sweetened” and “wholesome goodness” on the product packaging and further that “the health impact of consuming added sugar—and thus the alleged falsity of the challenged statements—differs for each consumer.” The court agreed as to the “wholesome goodness” phrase on Nutri-Grain bars packaging but disagreed that most consumers would not have seen “lightly sweetened” phrasing based on its…
The California Senate has reportedly passed legislation that would prohibit dine-in restaurant employees from offering patrons plastic straws. The restriction, which passed 25-12, would allow for the provision of straws if customers ask for them. Critics of the measure in the legislature purportedly argue that the effects of plastic straws are “a bit overstated,” with one legislator pointing out that plastic straws continue to be offered in the capitol building. The measure has been returned to the California State Assembly for concurrence in amendments.
Two consumers have filed a putative class action alleging Clif Bar & Co. misleads consumers because its bars do not contain “real white chocolate.” Joslin v. Clif Bar & Co., No. 18-4941 (N.D. Cal., San Francisco Div., filed August 14, 2018). According to the complaint, “U.S., Canadian, and European regulators all define white chocolate as having at least 3.5% milkfat” while Clif’s White Chocolate Macadamia Nut bars do not contain any milkfat. The plaintiffs assert that they relied upon the U.S. Food and Drug Administration’s “rules concerning white chocolate” when purchasing the bars but allegedly learned after purchasing that the bars are “misbranded” because the labels do not clarify that the white chocolate is “imitation.” The plaintiffs seek class certification, damages, restitution, an injunction and attorney’s fees for alleged violations of California and New York consumer-protection laws as well as fraud.
The Center for Food Safety has filed a lawsuit alleging Dr. Praeger’s Sensible Foods Inc. violates California's Safe Drinking Water and Toxic Enforcement Act (Prop. 65) by failing to warn consumers that its children’s food products contain levels of acrylamide in excess of 0.2 micrograms per day. Ctr. for Food Safety v. Dr. Praeger’s Sensible Foods, Inc., No. RG18915114 (Cal. Super. Ct., Alameda Cty., filed August 1, 2018). The advocacy group alleges that four of the company’s frozen vegetable products contain levels of acrylamide outside of safe-harbor limits and that none of the products carry the “clear and reasonable warning” required by Prop. 65. The complaint seeks injunctive relief, civil penalties and attorney’s fees.
A California federal court has denied a motion to dismiss a putative class action alleging deceptive labeling and advertising of Yogi Green Tea Kombucha, ruling that whether a reasonable consumer believes that kombucha should contain live organisms is a question of fact. Cohen v. East West Tea Co. LLC, No. 17-2339 (S.D. Cal., entered August 2, 2018). The plaintiff alleged that East West Tea falsely labels and advertises its product as kombucha because it purportedly contains no “live organisms." The court found that the parties' definitions of “kombucha” differ and that a reasonable consumer may or may not expect to find live organisms in kombucha. Whether a practice is deceptive is not a matter to be resolved by a motion to dismiss, the court held, noting “mixed case law on whether ambiguity regarding the definition of a word merits a motion to dismiss.”
The Center for Food Safety and the Center for Environmental Health have filed a lawsuit alleging that the U.S. Department of Agriculture (USDA) failed to comply with mandatory deadlines established by the 2016 Federal Bioengineered Food Disclosure Standards Act, which would require labeling of foods that contain genetically modified organisms (GMOs). Ctr. for Food Safety v. Perdue, No. 18-4633 (N.D. Cal., filed August 1, 2018). The act's statutory deadline for the completion of final regulations implementing the statute and establishing the national disclosure standard was July 29, 2018. The complaint alleges that “[t]he statute preempted state laws requiring [genetic engineering (GE)] labeling, but until USDA issues the regulations, the statute is an empty vessel: there can be no federally required disclosures.” “Due to the lack of mandatory labeling, many American consumers are under an incorrect assumption as to whether the food they purchase is produced with GE,” the plaintiffs allege.…