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.…
Shook Partners Frank Rothrock, Naoki Kaneko and Chris Johnson, with Associate Emily Weissenberger, have presented a webinar on California’s Safe Drinking Water and Toxic Enforcement Act (Prop. 65). Available on demand, the webinar covers an overview of Prop. 65 and strategies for managing its regulatory scheme.
Three plaintiffs have filed a projected class action alleging Trader Joe’s Co.’s “100%” Manuka Honey contains about 60 percent manuka honey. Moore v. Trader Joe’s Co., No 18-4418 (N.D. Cal., Oakland Div., filed July 20, 2018). The consumers allege that they paid a premium for the honey, which purportedly provides antibacterial benefits, because the jars were labeled as containing “100%” manuka honey and listing manuka honey as the sole ingredient. The complaint asserts that the plaintiffs’ testing found that the product “only contains between 57.3% to 62.6% manuka honey,” with other types of honey allegedly filling the remainder. The plaintiffs seek damages, class certification and attorney’s fees for alleged violations of California’s, North Carolina’s and New York’s consumer-protection statutes.
California Governor Jerry Brown has signed the Keep Groceries Affordable Act, a statute preventing local agencies in the state from imposing taxes or fees on groceries, including "carbonated and noncarbonated nonalcoholic beverages," until January 1, 2031. The law, which exempts taxes that do not specifically refer to groceries as a target classification, also invalidates any "tax, fee, or other assessment on groceries imposed by a local agency after January 1, 2018," but will not invalidate taxes on sugar-sweetened beverages in San Francisco and Berkeley.
A consumer has filed a putative class action alleging Ornua Foods North America misleadingly marketed its Kerrygold butter as produced from grass-fed cows because the cows are fed for part of the year with soy, corn and other grains. Myers-Taylor v. Ornua Foods N. Am., No. 18-1538 (S.D. Cal., filed July 6, 2018). The plaintiff asserts Ornua charges a premium based on the grass-fed-cows claim because butter produced from grass-fed cows purportedly contains higher levels of conjugated linoleic acid, omega-3 fatty acids, butyric acid and vitamins A and K2 than butter from grain-fed cows. Claiming violations of the California consumer-protection statutes, breach of express warranty, fraud and negligent misrepresentation, the plaintiff seeks class certification, restitution, damages and attorney's fees.
A consumer has filed a putative class action alleging Trader Joe's Co. misleads consumers with its alkaline water, which the company purportedly markets as "ionized to achieve the perfect balance." Weiss v. Trader Joe's Co., No. 18-1130 (C.D. Cal., S. Div., filed June 26, 2018). The complaint asserts that Trader Joe's charges a premium for its alkaline water despite that "no genuine scientific research" supports the representations, including that the pH level of "9.5+" can provide additional hydration and balance out the acidity of certain foods. The plaintiff seeks class certification, injunctive relief, damages and attorney's fees for alleged violations of California's consumer-protection statutes.
California's Office of Environmental Health Hazard Assessment (OEHHA) has determined that coffee will not be required to carry a label indicating that it contains chemicals known to cause cancer, birth defects or other reproductive harm pursuant to the state's Safe Drinking Water and Toxic Enforcement Act (Proposition 65). According to the notice, "Coffee, a unique and complex chemical mixture made from the roasted seeds of the coffee plant, contains many different compounds, including carcinogens listed under Proposition 65, and anticarcinogens. The International Agency for Research on Cancer (IARC)—the only Proposition 65 authoritative body to have evaluated coffee—concluded that coffee consumption is not classifiable as to its overall carcinogenicity and is associated with reduced risk of certain cancers in humans." Written comments on the determination will be accepted until August 30, 2018.
A California appeals court has affirmed the dismissal of a lawsuit alleging that infant formula was mislabeled because it contained synthetic ingredients, ruling that the plaintiff's state law claim was preempted by the Organic Foods Production Act (OFPA). Organic Consumers Assoc. v. Honest Co. Inc., No. B280836 (Cal. App. Ct., entered June 12, 2018). The advocacy group alleged that the formula contains synthetic ingredients not permitted in organic products under OFPA, thus violating the California Organic Products Act (COPA). "Association’s complaint does not allege that Honest is selling its premium infant formula without having gone through the organic certification process," the court found. "Nor are there any allegations of misconduct by Honest in obtaining or using its organic certification. Rather, the gravamen of Association’s single cause of action under the COPA is that Honest is labeling as organic infant formula that is not in fact organic." The court found this claim preempted by federal law. "If, as Association…
California Attorney General Xavier Becerra has filed a lawsuit alleging two companies' toddler formula products contain lead levels higher than U.S. Food and Drug Administration (FDA) standards. California v. Nutraceutical Corp., No. RG18907841 (Cal. Super. Ct., Alameda Cty., filed June 7, 2018). The state alleges that Sammy’s Milk Free-Range Goat Milk Toddler Formula, manufactured and sold by Graceleigh Inc., and Peaceful Planet Toddler Supreme Formula, manufactured and sold by Nutraceutical Corp., contain more than six micrograms of lead—the daily intake limit set by FDA—and fail to include lead warnings on the products' labels. Both companies purportedly market their products as "clean" and "pure." “Toddler formula should contain nutrients that help children grow, not poisonous substances that can threaten their healthy development. No parent should have to worry that the formula they purchase could endanger their child,” said Becerra in a press release. “The levels of lead we found in these formulas…