The Ninth Circuit Court of Appeals has affirmed a dismissal of a consumer lawsuit against Costco Wholesale Corp. alleging mislabeling claims against VitaRain Tropical Mango Vitamin Enhanced Water Beverage. Maple v. Costco Wholesale Corp., No. 13-36089 (9th Cir., order entered May 9, 2016). The plaintiff had alleged the product was mislabeled because the product contains added caffeine, precluding the use of “natural” on the label. The district court dismissed the case because the plaintiff did not read the label before purchasing it; on appeal, the plaintiff asserted that he could amend the complaint to add “a subclass of plaintiffs who did read the relevant parts of the label.” Because he did not rely on the label, the plaintiff’s claim failed, and “the potential existence of other classes of which Plaintiff is not a member is irrelevant,” the court found. Further, the “district court abused its discretion by dismissing the action…
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A California federal court has dismissed a lawsuit brought by People for the Ethical Treatment of Animals (PETA) alleging Whole Foods Market Inc. misrepresents its meat products as humanely slaughtered with its Global Animal Partnership (GAP) 5-Step® Rating System. PETA v. Whole Foods Mkt. Cal., Inc., No. 15-4301 (N.D. Cal., order entered April 26, 2016). Details about the complaint appear in Issue 579 of this Update, while information about a previous dismissal without prejudice appears in Issue 593. The plaintiffs asserted that Whole Foods’ GAP rating system is a ”‛sham’ that is not actually enforced and the advertisements do not adequately disclose that ‘key animal treatment standards’ under the GAP rating ‘are no better or marginally better than is the common industry practice,’” according to the court. Whole Foods filed a motion to dismiss the case arguing that the plaintiffs failed to allege misrepresentations or an actionable omission under California law, and…
The U.S. Food and Drug Administration (FDA) has issued final guidance to help chain establishments with 20 or more locations (e.g., grocery and convenience stores, quick-service and fast-food restaurants, pizza delivery outlets, and movie theaters) comply with menu labeling requirements for standard menu items and self-service offerings under the Federal Food, Drug, and Cosmetic Act. According to FDA, the final guidance provides “additional examples and new or revised questions and answers on topics such as covered establishments, alcoholic beverages, catered events, mobile vendors, grab-and-go items, and recordkeeping requirements.” Enforcement of the menu labeling final rule will begin on May 5, 2017. See Federal Register, May 5, 2016. Issue 603
A California federal court has granted The Kroger Co.’s motion to dismiss a lawsuit alleging the company’s breadcrumbs product includes partially hydrogenated oil, which contains trans fat, despite labeling the product as “0g Trans Fat.” Hawkins v. Kroger Co., No. 15-2320 (S.D. Cal., order entered March 17, 2016). The court found that the mislabeling claims failed for two reasons. First, a challenge to a “0g Trans Fat” labeling claim is preempted, the court said, because U.S. Food and Drug Administration regulations require that foods with less than one-half of a gram of trans fat be labeled as “0g.” Second, the plaintiff failed to prove actual reliance on the allegedly deceptive statements, the court found, rejecting her argument that she “is a busy person and cannot reasonably inspect every ingredient of every food that she purchases” despite having bought the bread crumbs six times per year for 15 years but only noticing…
Food and Water Watch, the Center for Food Safety, Friends of the Earth and other consumer and environmental groups have filed a lawsuit against the U.S. Food and Drug Administration (FDA) arguing the agency approved the use of genetically engineered (GE) salmon AquaBounty for human consumption without properly investigating related environmental risks. Inst. for Fisheries Res. v. Burwell, No. 13-1574 (N.D. Cal., filed March 30, 2016). The complaint alleges that AquaBounty received approval for two facilities only but has told its investors that it will expand in 2016; the organizations assert that FDA should have investigated the environmental effects of AquaBounty’s “necessary outgrowth” rather than limiting its analysis to the effects of two facilities. The complaint further alleges that FDA “failed to consult with the federal fish and wildlife agencies to insure that its approval for AquaBounty’s application was not likely to jeopardize endangered and threatened species or adversely modify…
A Connecticut federal court has reportedly approved the dismissal of Pepperidge Farm's lawsuit against Trader Joe's Co. alleging the grocery infringed Pepperidge Farm's trademarked Milano® cookies. Pepperidge Farm v. Trader Joe's Co., No. 15-1774 (D. Conn., order entered March 9, 2016). The lawsuit challenged Trader Joe's Crispy Cookies, which Pepperidge Farm asserted were the same shape and sold in similar packaging to Milano® cookies. The order is the first legal filing in the case since the lawsuit was filed in December 2015; an attorney for Pepperidge Farm told Law360 that the parties had reached a "mutually satisfactory resolution." Additional information about the complaint appears in Issue 586 of this Update. See Law360, March 10, 2016. Issue 598
A New York federal court has dismissed a putative class action alleging Whole Foods Market Group overcharged its customers for some prepackaged foods, finding that the plaintiffs failed to specify any particular transactions in which the grocer overcharged them. In re Whole Foods Mkt. Grp., Inc. Overcharging Litig., No. 15-5838 (S.D.N.Y., order entered March 1, 2016). The complaint was filed after the New York City Department of Consumer Affairs (DCA) announced the results of its investigation into “systemic overcharging” at Whole Foods stores across the city. The plaintiffs alleged that they “regularly purchased”—“one or two times per month”—pre-packaged products from Whole Foods that the DCA identified in its press release, including cheese, cupcakes and chicken fingers. The court took issue with the plaintiffs’ reliance on the DCA press release, finding that its “statements fall very far short of reporting an investigative finding of ubiquitous, systematic over-weighting at Whole Foods’ New…
A Texas federal court has dismissed multidistrict litigation (MDL) alleging that Whole Foods Market Inc. lists incorrect amounts of sugar on its yogurt labels, concluding the Consumer Reports data relied on by the plaintiffs did not meet federal standards. In re Whole Foods Mkt. Inc. Greek Yogurt Mktg. & Sales Practices Litig., MDL No. 2588 (W.D. Tex., Austin Div., order entered February 16, 2016). The consumers claimed Whole Foods’ store-brand yogurt contains 11.4 grams of sugar per serving, while the listed sugar content is 2 grams. Details about some of the 11 consolidated lawsuits appear in Issues 533 and 534 of this Update. Whole Foods argued that the consumers’ claims were preempted by the federal Food, Drug, and Cosmetic Act (FDCA) because the scientific testing techniques used by Consumer Reports failed to comply with the testing methodology determined by the U.S. Food and Drug Administration. The court agreed, noting that…
A California federal court has dismissed a lawsuit brought by People for the Ethical Treatment of Animals Inc. (PETA) alleging Whole Foods Market Inc. falsely advertises its meat as ethically slaughtered. PETA v. Whole Foods Mkt., Inc., No. 15-4301 (N.D. Cal., order entered January 29, 2016). The organization challenged Whole Foods’ five-step Global Animal Partnership rating as misleading consumers because the assessments are allegedly insufficient. Details on PETA’s complaint appear in Issue 579 of this Update. The court first found that PETA had standing to sue despite the organization’s not being a customer of Whole Foods. The court then turned to Whole Foods’ argument that PETA failed to plead its fraud allegations with the specificity required. The photos included with the complaint were insufficient to fulfill the requirement, the court found, because PETA did not clarify which aspects of the in-store displays were at issue. That vagueness also prevented the court…
An Ohio appeals court has affirmed a lower court decision finding that two consumers’ mislabeling allegations against The Kroger Co. are preempted by the Poultry Products Inspection Act (PPIA). Arnold v. Kroger Co., No. C-150291 (Ohio Ct. App., 1st App. D., Hamilton Cty., order entered January 22, 2016). The consumers alleged Kroger’s chickens were not subjected to “a humane environment” as the company advertised and thus were not worth the premium the store charged. The trial court dismissed the claims as preempted by the PPIA, and the plaintiffs appealed. The appeals court was unpersuaded by the plaintiffs’ argument that the Food Safety and Inspection Service’s (FSIS’) inspection and approval of Kroger’s slaughtered chickens were insufficient to determine whether the chickens were in a humane environment while alive. “FSIS has determined that humane treatment of poultry directly implicates its fitness for human consumption because ‘under the PPIA, poultry products are more…
