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A federal court in California has denied the defendant’s motion to dismiss in a putative class action alleging false and misleading advertising for defendant’s “Tropicana Pure 100% Juice Pomegranate Blueberry Flavored Blend of 5 Juices from Concentrate with other Natural Flavors.” Zupnik v. Tropicana Prods., Inc., No. 09-6130 (C.D. Cal., decided February 1, 2010). Plaintiffs allege that the product label, which emphasizes the pomegranate and blueberry components of the product by image and size of type constitutes false or misleading advertising in violation of several state statutes. According to the complaint, consumers are misled into believing the juice is primarily pomegranate and blueberry juice when it is, in fact, mostly pear juice. Tropicana argued that the plaintiff lacked standing, her claims were expressly preempted by federal law, and they were not pleaded with particularity. The court disagreed, finding that because the plaintiff claimed she did not get what she paid…

In a letter recently posted to its website, the Food and Drug Administration (FDA) has warned Nestlé USA that its Juicy Juice® products are misbranded because their labels include “unauthorized nutrient content claims.” According to FDA, the product labels include the claim “Helps support brain development . . . In children under two years old” and also states “no sugar added.” Under FDA regulations, these statements cannot be made on products for children younger than age 2. FDA also states that other Nestlé products have misleading labels because they imply that they contain 100 percent natural fruit juice when they actually contain “Flavored juice blend from concentrate with other natural flavors & added ingredients.” In a separate letter, FDA warns that the company’s BOOST Kid Essentials Nutritionally Complete Drinks® are also misbranded because they are promoted as a “medical food” to address conditions such as “failure to thrive” and “pre/post…

Welch Foods Inc. has filed suit against its insurers claiming that they have a duty to defend and indemnify the beverage maker in litigation alleging that the company deceptively marketed its “100% Juice White Grape Pomegranate Flavored 3 Juice Blend”®. Welch Foods Inc. v. Zurich Am. Ins. Co., No. 09-12087 (D. Mass., filed December 8, 2009). According to Welch, the insurers were timely notified about two lawsuits, one by a competitor, POM Wonderful LLC v. Welch Foods Inc., and one by a consumer on behalf of a class, Burcham v. Welch Foods Inc., and denied they had a duty to defend or indemnify the beverage maker. Additional information about those lawsuits appears in issues 290, 313 and 316 of this Update. Alleging that its defense costs have exceeded $75,000 to date in both cases, Welch seeks a declaration that the insurers have a duty to defend and indemnify it under…

A putative class action was reportedly filed in a California state court against Nestlé, alleging that the company falsely advertises its “Juicy Juice Brain Development Fruit Juice” as a product that will improve toddlers’ brain function. Plaintiff Alexis Farmer, who then dismissed the complaint without prejudice several days later, reportedly claimed that she purchased the company’s juice relying on labeling and advertisements stating that it contained DHA Omega-3, a “fatty acid especially important for brain development in children under two years old.” Farmer was seeking damages and injunctive relief; her complaint apparently alleged false and misleading advertising, unjust enrichment, fraud, and civil code violations. See Courthouse News, September 23, 2009. In a related development, Health Canada has apparently decided not to stop infant-formula manufacturers from claiming that DHA, in any amount, will support normal brain and eye development, particularly for children under two. The Canadian Food Inspection Agency asked the…

In the wake of lawsuits filed by the manufacturer of a pomegranate-juice based product line, consumers have now begun seeking damages against the same defendants for alleged deception and fraud in the sale of pomegranate juice purportedly containing “little or no pomegranate juice.” Burcham v. Welch Foods, Inc., No. 09-05946 (C.D. Cal., filed August 14, 2009). Additional information about the lawsuits filed by POM Wonderful LLC against Welch Foods, Inc. and Ocean Spray Cranberries, Inc. appears in issues 290 and 313 of this Update. According to plaintiff Maryam Burcham, seeking damages for herself and a class of “All persons residing in California who purchased Welch’s ‘White Grape Pomegranate Juice,”’ the defendant’s product “purports to combine white grape and pomegranate into a single juice product. However, the truth is that the main ingredients in Defendant’s White Grape Pomegranate Juice are actually cheap white grape and apple juice, instead of pomegranate juice,…

A federal court in California has denied the motion to dismiss filed by Ocean Spray Cranberries, Inc. in litigation filed by Pom Wonderful LLC alleging that the company’s false advertising for a cranberry-pomegranate juice violates federal and state law and constitutes unfair competition. Pom Wonderful LLC v. Ocean Spray Cranberries, Inc., No. 09-00565 (C.D. Cal., decided July 16, 2009). Pom Wonderful alleges that Ocean Spray’s product contains little pomegranate juice, costs less to produce and thus unfairly competes with its own and other competitors’ pomegranate juices. The complaint also contends that marketing the Ocean Spray product as high in antioxidants misrepresents the product because “in fact the Beverage does not contain high levels of antioxidants.” The court rejected Ocean Spray’s assertions that (i) the false advertising claims brought under the Lanham Act are precluded or barred by the Federal Food, Drug, and Cosmetic Act and Food and Drug Administration (FDA) regulations;…

A putative class action filed in a California federal court against Snapple Beverage Corp. alleges that the company misleads consumers by labeling as “All Natural” products containing high fructose corn syrup (HFCS) and using the names of fruits for some products that “do not contain any significant amount of the fruit listed in the product’s name.” Von Koenig v. Snapple Beverage Corp., No. 09-00337 (E.D. Cal., filed March 4, 2009). The named plaintiff seeks to certify two subclasses of California consumers “to redress Defendant’s deceptive, misleading and untrue advertising and unlawful, unfair and fraudulent business acts and practices.” One subclass would involve those who purchased the company’s “All Natural Products” that contained HFCS; the other would include those who purchased “Fruit Products . . . which included the name or picture of a fruit in the product name or label but which did not contain a substantial amount of that…

The European Food Safety Authority’s Panel on Dietetic Products, Nutrition and Allergies (NDA) has rejected a health claim dossier submitted by Ocean Spray Cranberries, Inc., that sought to link consumption of its products to a reduced risk of urinary tract infection (UTI) in women. Ocean Spray asserted that dried cranberries and juice drinks containing 80 milligrams of cranberry proanthocyanidins (PAC) lessened UTI risk in women older than age 16 by “inhibiting the adhesion of certain bacteria in the urinary tract.” Although NDA acknowledged that some in vitro trials have supported this claim, the panel ultimately cited a lack of convincing clinical trials and ruled that the evidence failed to establish “a cause and effect relationship” between the product and the purported health benefit. Of the 12 studies presented by Ocean Spray, NDA dismissed six because they did not involve normal populations; one because it referenced a higher PAC dosing; and…

A Massachusetts woman has filed a putative class action in federal court against Gerber Products Co., alleging that its packaging misrepresented the quality of its Fruit Juice Snacks®, which “were virtually nothing more than candy with a touch of vitamin C.” Wiley v. Gerber Prods. Co., No. 09-10099 (D. Mass, filed January 22, 2009). She seeks to represent a class of all consumers who purchased the product before Gerber changed its packaging to indicate that the product was a “treat” rather than a “snack.” Alleging violations of a Massachusetts consumer protection law, intentional and negligent misrepresentation, breach of express and implied warranties, and unjust enrichment, the plaintiff requests class certification, a declaration that Gerber’s acts and practices are unlawful, a permanent injunction, corrective advertising, and damages of $25 per violation amounting to more than $5 million, refunds, double or treble damages, attorney’s fees, and costs. According to the complaint, package…

POM Wonderful LLC has reportedly brought false advertising and unfair competition claims in federal court against Welch Foods Inc. for marketing a product with little pomegranate juice as a “white grape and pomegranate” juice. POM Wonderful LLC v. Welch Foods Inc., No. 09-00567 (C.D. Cal., filed January 23, 2009). According to a news source, POM Wonderful has built a multimillion-dollar business by making and marketing the health benefits of a pomegranate juice-based product line. The company alleges that Welch has taken advantage of its success by developing an intentionally confusing and misleading product and implying “that its product is of the same composition and quality of blended pomegranate juices such as plaintiff’s blended pomegranate juices, when in fact Welch’s has substituted much of the valuable and beneficial substance of pomegranate juice with economically and nutritionally inferior juices such as apple.” POM Wonderful apparently alleges that Welch has violated the false advertising…

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