Tag Archives New York

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…

Kellogg Co. faces a putative class action alleging its Salt & Vinegar Pringles are mislabeled as containing “No Artificial Flavors” because the nutrition label identifies two artificial ingredients. Marotto v. Kellogg Co., No. 18-3545 (S.D.N.Y., filed April 20, 2018). The complaint asserts that although both sodium diacetate and malic acid can occur in nature, the sodium diacetate used in the product is “a synthetic industrial chemical manufactured in a chemical refinery from carbon monoxide and industrial methanol" while the malic acid is “d-1-malic acid . . . manufactured in petrochemical plants from benzene or butane.” Alleging unfair and deceptive business practices, false advertising and misrepresentation, the plaintiff seeks class certification, corrective advertising, damages and attorney’s fees. In March 2018, a federal court in California refused to dismiss a similar lawsuit against Kellogg, finding the plaintiffs had adequately pleaded reasonable customer confusion.

A consumer has filed a putative class action alleging the labels for Crystal Farms Refrigerated Distribution Co.'s Diner’s Choice mashed potatoes assert that the products are made with real butter and fresh whole potatoes while the products contain margarine and preservatives. Reyes v. Crystal Farms Refrigerated Distrib. Co., No. 18-2250 (E.D.N.Y., filed April 16, 2018). The complaint alleges that despite the prominent package labeling, the products’ nutrition labels list margarine as the third ingredient, misleading consumers who expect the potatoes to contain only butter. The complaint also asserts that “fresh mashed potatoes have a shelf life between 7 and 10 days. The Products’ 3-month shelf life is due to artificial chemical preservatives including sodium benzoate, disodium pyrophosphate, potassium sorbate and sodium bisulfite.” Alleging violations of New York’s General Business Law, negligent misrepresentation and fraud, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.

A consumer has filed a putative class action alleging That’s It Nutrition deceptively labels and advertises its snack bars’ ingredients by using collective names for the fruits and vegetables they contain. Medina v. That’s It Nutrition, LLC, No. 18-2022 (E.D.N.Y., filed April 4, 2018). The complaint alleges that That's It fruit bar labels list generic names rather than specific ingredients; for example, one bar's label lists “apples” without specifying whether the ingredient is apple powder, puree or some other processed form of the fruit. “If the defendant began the bar production process with whole intact fruits, the ingredient list would indicate the presence of an additional binding ingredient such as a gel, pectin, juice concentrate or syrup, needed to keep the individual fruit matter together,” the complaint asserts. The label representations, which include “That’s it,” “All Natural,” “No Preservatives,” “Raw,” “No Purees or Juices,” “2 ingredient snack,” “Just Fruit” and…

The Second Circuit has affirmed the dismissal of a putative class action that alleged Abbott Laboratories Inc. falsely represented its Similac Advance Organic Infant Formula as organic, ruling the plaintiffs’ state-law claims are barred by the Organic Foods Production Act (OFPA). Marentette v. Abbott Labs. Inc., No. 17-0062 (2d Cir., entered March 23, 2018). The plaintiffs alleged that Abbott misled consumers because the product contained ingredients not permitted by the OFPA. The appeals court asked the U.S. Department of Agriculture (USDA) to submit an amicus brief addressing (i) whether the certification process requires the certifying agent to review and approve the ingredients of the final product to be labeled organic and (ii) whether products made in accordance with a properly certified plan will necessarily comply with the OFPA. According to the decision, USDA stated that “certifying agents review and approve both the process and the ingredients of the final product…

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