A federal court in Illinois has dismissed a putative class action filed against a nutritional supplement company by a Muslim woman who alleged that the company misled consumers by failing to disclose that some of its products contain an animal-based product. Lateef v. Pharmavite LLC, No. 12-5611 (N.D. Ill., decided October 24, 2012). The court found the consumer-fraud claim preempted and determined that the named plaintiff lacked standing to rely on allegations relating to the company’s web-based advertising because she did not visit the Website before purchasing the product. The plaintiff also abandoned her federal law-based claim. According to the court, the plaintiff has dietary restrictions that prohibit her from eating certain animal-based food products such as pork. She allegedly purchased the defendant’s Nature Made® Vitamin D tablets after carefully reading the product label to ensure it did not contain animal byproducts. Her complaint alleges that the tablets were coated…
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According to University of Oklahoma College of Law Professor Drew Kershen, writing for the Giannini Foundation of Agricultural Economics publication Agricultural and Resource Economics, if California voters approve Proposition 37 (Prop. 37) in November 2012, it could be vulnerable to challenge under World Trade Organization (WTO) agreements. As Kershen notes, the ballot proposition would “impose mandatory labeling on a broad range of raw and processed foods.” Those produced “entirely or partially” through genetic engineering would be required to state that fact on product labels, and no processed food could be marketed as “natural,” “naturally made,” “naturally grown,” or “all natural.” Kershen focuses on the WTO Agreement on the Application of Sanitary and Phytosanitary (SPS) Measures and the Agreement on Technical Barriers to Trade (TBT). While the United States, but not California, is a member state under the agreements, Kershen argues that they nevertheless apply to California’s Prop. 37. He contends that…
The U.K. Department of Health (DOH) has announced a voluntary front-of-pack (FOP) nutrition labeling scheme designed to “clearly” display the amount of fat, saturated fat, salt, sugar, and calories contained in food products. According to an October 24, 2012, press release, the proposed system will use color coding, guideline daily amounts and “high/medium/low” text to help consumers “make quick, informed decisions about the food they eat.” The announcement apparently followed a three-month consultation with retailers, manufacturers and other stakeholders about the future of FOP labeling. Although DOH will continue to meet with industry about the system’s final design, it evidently plans to launch the initiative as early as summer 2013. “The U.K. already has the largest number of products with front-of-pack labels in Europe but research has shown that consumers get confused by the wide variety of labels used,” said Public Health Minister Anna Soubry. “By having a consistent system…
A federal court in California has given final approval to the $2.6 million settlement of a class action alleging that Diamond Foods falsely represented that the omega-3 in its walnuts provides health benefits. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., decided October 16, 2012). Additional information about the case appears in Issue 436 of this Update. While additional claims may be filed by class members until October 26, as of September 7, more than 23,000 class members had submitted claims, and they have been submitted at a rate of about 1,000 each week. The court issued its ruling after the parties provided supplemental briefing on the cy pres issue. Under the unpublished final disposition, the court indicated that any residual funds will be provided to the American Heart Association, which “provides education on issues relating to heart healthy food, including education about how to read food labels.” The court…
U.S. Senator Barbara Boxer (D-Calif.) has urged the Food and Drug Administration (FDA) to take action to address seafood fraud. In her October 15, 2012, letter, Boxer defines seafood fraud as “the mislabeling of one species of fish for another fish that is often cheaper and more readily available.” Boxer cites studies purportedly showing that the practice may be “pervasive” throughout the United States and contends that it not only constitutes “deceptive marketing, but it can also pose serious health concerns, particularly for pregnant women seeking to limit exposure to heavy metals or individuals with serious allergies to certain types of fish.” Among the studies cited are those finding mislabeled 20 percent of 88 samples tested in Boston, 55 percent of 119 samples tested in California and 31 percent of 96 samples tested in Florida. The senator expresses her concern with the low number of inspections FDA conducts on both imported…
A California resident has filed a putative class action against General Mills, Inc., alleging that its “100% Natural” labeling and advertising for products such as Nature Valley® Dark Chocolate Peanut Butter Crunchy Granola Bars are misleading because the products contain ingredients grown from genetically modified organisms (GMOs). Rojas v. General Mills, Inc., No. 12-5099 (N.D. Cal., filed October 1, 2012). Contending that the soy, yellow corn flour, soy flour, and soy lecithin in the granola bars are GMO ingredients, the plaintiff does not request that the defendant provide a GMO disclosure; rather, he “only requests Defendant to remove the ‘100% NATURAL’ labeling from its Product.” While the plaintiff’s alleged harm is purely economic, i.e., he did not get the benefit of his bargain, he alleges that GMOs “pose a potential threat to consumers because medical research and scientific studies have yet to determine the long-term health effects of genetically engineered foods.”…
A California resident has filed a putative nationwide class action with a California subclass against a company that makes low-calorie frozen desserts that allegedly have as much as 68 percent more calories than touted on the product label. Freeman v. Arctic Zero, Inc., No. 12-2279 (S.D. Cal., filed September 18, 2012). Similar putative class claims filed by another California resident in August are summarized in Issue 451 of this Update. According to plaintiff Brenda Freeman, “[c]onsumers do not receive the benefit of their bargain because the actual calorie content of the Frozen Desserts is up to 68 percent higher than Arctic Zero prominently represents on the front of the product packaging, on the nutritional label, and in Arctic Zero’s other marketing materials.” She cites testing on the company’s Chocolate Peanut Butter and Vanilla Maple products showing them to be higher in calories than the 150 calories per pint on package…
A Florida resident has filed a putative statewide class action alleging that Frito-Lay falsely labels its snacks, including “Bean Dip products,” as “ALL NATURAL” despite the use of ingredients—particularly soy—containing genetically modified organisms (GMOs). Altman v. Frito-Lay N. Am., Inc., No. 12-61803 (S.D. Fla., filed September 13, 2012). The gist of the complaint is that products containing GMOs should not be labeled “all natural” unless they also disclose that the products contain GMOs. The plaintiff contends that she would not have purchased the company’s bean dip if she had known the company “could not support its claim that the Product is all natural.” Seeking to represent a class of Florida consumers who purchased Frito-Lay “All Natural” products over the past four years, the plaintiff alleges violations of the state’s Deceptive and Unfair Trade Practices Act and unjust enrichment. She requests injunctive relief, restitution, actual damages, punitive damages, attorney’s fees, costs,…
The day after a California court apparently refused to approve the settlement of class claims against the company that makes “All Natural Ben & Jerry’s Ice Cream,” an Illinois resident filed a putative class action against the company in a New Jersey federal court, alleging that the product contains many unnatural ingredients including those that are genetically modified. Tobin v. Conopco, Inc., No. 12-5881 (D.N.J., filed September 13, 2012). The named plaintiff seeks to represent a nationwide class of individuals who purchased the products since 2006 relying on the allegedly false “all natural” label. According to the complaint, the Center for Science in the Public Interest (CSPI) tested the company’s products in 2010 and found that they contain “alkalized cocoa, corn syrup, partially hydrogenated soybean oil, or other ingredients that either don’t exist in nature or that have been chemically modified.” CSPI’s letter to the manufacturer, claiming that the products…
A European Court of Justice panel has determined that a German winemaker may not, under European Union law, place labels on its bottles including the word bekömmlich (meaning digestible, wholesome or nourishing). Deutsches Weintor eG v. Land Rehinland-Pfalz, Case C 544/10 (E.C.J., decided September 6, 2012). According to the court, “[b]y highlighting only the easy digestion of the wine concerned, the claim at issue is likely to encourage its consumption and, ultimately, to increase the risks for consumers’ health inherent in the immoderate consumption of any alcoholic beverage. Consequently, the prohibition of such claims is warranted in light of the requirement to ensure a high level of health protection for consumers.” The matter returns to a German court for final ruling.
