Tag Archives New York

A New York federal court has dismissed a putative slack-fill class action against Tootsie Roll Industries, finding that the packaging of Junior Mints contains sufficient information for consumers to determine its volume and that “[t]he law simply does not provide the level of coddling plaintiffs seek. ... The court declines to enshrine into the law an embarrassing level of mathematical illiteracy." Daniel v. Tootsie Roll Industries LLC, No. 17-7541 (S.D.N.Y., entered August 1, 2018). The court found that “consumers can easily calculate the number of candies contained in the Product boxes simply by multiplying the serving size by the number of servings in each box, information displayed in the nutritional facts section on the back of each box.” In addition, the court rejected arguments that consumers depend on the size of the candies as shown on the package. Moreover, the court found that the plaintiffs did not show that the…

Diamond Foods LLC faces a putative class action alleging Kettle Foods potato chips are marketed as “Made with Natural Ingredients” and “No Preservatives” but contain citric acid. Mason v. Diamond Foods LLC, No. 18-6423 (S.D.N.Y., filed July 16, 2018). The complaint identifies several flavors of chips that allegedly contain the “synthetic compound,” purportedly produced from mold strains and sulfuric acid. Claiming violations of several states' consumer-protection statutes, the Magnuson-Moss Warranty Act, breach of warranties and common law fraud, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.

A consumer has filed a putative class action alleging that Florida’s Natural Orange Juice is not “natural” because it is “highly processed” and contains pesticide residues. Axon v. Citrus World Inc., No. 18-4162 (E.D.N.Y., filed July 20, 2018). The complaint alleges that Citrus Inc. markets Florida’s Natural with illustrations on the packaging of “green leaves and orange blossoms as well as fresh-sliced oranges with juice visibly dripping from the fruit,” which conveys to consumers that “the juice is in fact natural and similar in result if consumers had squeezed the oranges themselves.” For alleged violations of New York’s consumer-protection statutes, the plaintiff seeks class certification, damages, restitution and attorney’s fees.

A New York federal court has dismissed some allegations in a lawsuit alleging Whole Foods Market Group Inc. and Freshbev LLC mislabeled juice products but will allow three claims to proceed. Campbell v. Freshbev LLC, No. 16-7119 (E.D.N.Y., entered July 2, 2018). The plaintiff alleged that the companies mislabeled the juices as unpasteurized, cold-pressed and fresh and that Ripe Craft Juice 12.2 Northeast Blend Cranberry Apple contained more apple juice than cranberry in the blend. The court dismissed the allegation that the "cold-pressed" labels were misleading because the juices are subjected to high-pressure processing, finding that a "reasonable consumer would not mistake the cold-pressed claim to be a claim that pressure was never applied to the juice products." The court permitted three state-law claims related to the "fresh" labels, the "unpasteurized" label on cranberry juice, and the "Cranberry Apple" juice ingredients to continue but dismissed claims for injunctive relief and fraud.

Campbell Soup Co. faces a putative class action alleging that it deceptively markets its soups as having "No Preservatives Added" or being "Made With Patience, Not Preservatives" despite containing citric acid, ascorbic acid or other preservatives. Cabrega v. Campbell Soup Co., No. 18-3827 (E.D.N.Y., filed July 2, 2018). The complaint alleges that such statements violate consumer-protection statutes nationwide and are common law fraud. The plaintiffs seek class certification, damages, corrective advertising, injunctive relief and attorney's fees.

Utz Quality Foods LLC and Good Health Natural Products Inc. face a potential class action alleging that the companies replaced a blend of vegetable-derived ingredients with synthetic additives in their Extra Goodness! products, including vegetable straws and chips. Feldman v. Utz Quality Foods, LLC, No. 18-6004 (S.D.N.Y., filed July 3, 2018). The complaint alleges that the companies deceptively marketed and misbranded the snacks, which were previously made with a proprietary blend of spinach, broccoli, carrots, tomatoes, beets and shiitake mushrooms. The plaintiff contends that Utz and Good Health stopped buying the blend in December 2016 and replaced it with a "cheaper synthetic blend" but did not update the ingredient list for more than a year. Moreover, the plaintiff contends that the current product does not contain "significant amounts of the vegetables or vegetable-derived vitamins depicted, and are not healthful." Claiming deceptive acts or practices, false advertising, breach of warranties and unjust enrichment,…

A consumer has filed a lawsuit alleging that the packaging for Chicago Bar Co.'s RXBAR misleads consumers about the ingredients of the product. Pizzirusso v. Chicago Bar Co., No. 18-3529 (E.D.N.Y., filed June 15, 2018). RXBAR and RXBAR Kids products feature a list of ingredients on the front of the package—for example, the blueberry flavor's packaging reads, "3 Egg Whites, 6 Almonds, 4 Cashews, 2 Dates, No B.S."—with an additional ingredient list on the back of the package. According to the complaint, both lists obscure the actual ingredients; rather than egg whites, the plaintiff argues, RXBARs contain egg white protein powder, which a previous version of the packaging allegedly named. "[P]arents correctly wouldn't want to buy their young children foods which contained concentrated protein powders, for a variety of reasons related to normal adolescent and child development," the plaintiff argues. Further, the "fruit pieces incorporated into the Products are 'infused' (flavored)…

A federal court in New York has dismissed a putative class action alleging that Storck USA L.P. packaged Werther’s Original Sugar Free Chewy Caramels with nonfunctional slack fill and misrepresented the candy's effect on blood glucose levels. Kpakpoe-Awel v. Storck USA L.P., No. 18-1086 (S.D.N.Y., entered June 8, 2018). According to court filings, the parties have entered into a confidential settlement agreement.

A federal court in New York has dismissed with prejudice a putative class action alleging that Pepsi-Cola Co. falsely and deceptively used the term "diet" for its Diet Pepsi, leading consumers to believe that the beverage would help them lose weight or assist with "healthy weight management." Manuel v. Pepsi-Cola Co., No. 17-7955 (S.D.N.Y., entered May 17, 2018). Following three federal district court dismissals of nearly identical claims, the court found that "no reasonable consumer would understand a soft drink labeled as 'diet' to be a weight-loss product." "'Diet' immediately precedes 'Pepsi,' and thereby connotes a relative health claim—that Diet Pepsi assists in weight management relative to regular Pepsi," the court held. Although "diet" is used to identify other weight-loss products, "in the context of soft drinks, the term unambiguously signals reduced calorie content relative to the non-diet version of the drink in question." Ruling that a cause of action for false or misleading…

A New York plaintiff alleges Halo Top ice cream is falsely and deceptively labeled because it does not prominently display the term "light" on its labels, purportedly misleading consumers into believing it is regular full-fat ice cream. Berger v. Eden Creamery, LLC, No. 18-2745 (E.D.N.Y., filed May 9, 2018). Among other allegations, the plaintiff asserts that consumers associate the word "halo" with yellow, the color of butter and cream; that Eden Creamery fails to comply with federal laws requiring the identity statement "light ice cream" to be displayed prominently on the front label; and that the location where the phrase is displayed is "in an area of the container prone to ice or condensed water obstructing it." In addition, the complaint alleges that Eden Creamery's statements that Halo Top is "All Natural" and contains "No Artificial Sweeteners" are false and misleading because the products contain a synthetic form of the sugar…

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