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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…

I Heart Foods Inc. faces a putative class action alleging that its "I Heart Keenwah" Quinoa Puffs contain mostly rice and pea protein rather than the quinoa implied by the product name. Ransom v. I Heart Foods Inc., No. 18-1465 (E.D.N.Y., filed March 8, 2018). According to the complaint, Quinoa Puffs are made from quinoa flour, brown and white rice flours and pea protein concentrate. Manufacturing methods for “puffed extrusion foods” require ingredients that have a low fat and high starch content, the plaintiff asserts, and the high levels of lipids in quinoa suggest that the product is mostly made of rice. In addition, the complaint argues that because pea protein has five times the amount of protein contained in quinoa, the label’s claim of five grams of protein per serving is likely due to the pea protein. Alleging violations of New York consumer-protection laws, breach of warranties, fraud and unjust enrichment,…

The U.K. Advertising Standards Authority (ASA) has upheld a complaint that a “100% Natural Ingredients” claim was misleading because the processing of the snack bar's ingredients did not comply with the Food Standards Agency’s (FSA's) criteria for use of the term “natural.” United Biscuits submitted a list of ingredients for its “Go Ahead Goodness” snack bars and asserted that all ingredients were made in a traditional manner. After ASA referred to FSA guidance, it determined that the refining of sunflower oil involves the use of chemical solvents and the process of creating reduced-fat cocoa powder involves the addition of potassium carbonate. Because the FSA guidance says neither the solvent extraction process nor the use of acid or alkali solutions is “in line with consumer expectations of ‘natural,’” ASA ruled that consumers would not consider the ingredients natural and that the advertisement was misleading.

BFY Brands, Inc., maker of Our Little Rebellion snacks, faces a potential class action alleging that its one-ounce bags of popcorn contain up to 54 percent slack fill. Reaves v. BFY Brands, Inc., No. 18-2065 (S.D.N.Y., filed March 7, 2018). The plaintiff alleges that he bought bags of Popcorners products—including Smokin’ Jalapeño White Cheddar, Sweet Heat Chili and Sweetly Salted Caramel—but did not receive the amount he expected based on the size of the packages. Claiming violations of New York consumer-protection laws, deceptive and unfair trade practices, false advertising and fraud, the plaintiff seeks class certification, injunctive relief, damages, corrective advertising and attorney’s fees.

A California court has denied a motion to dismiss a putative class action alleging the label of Frito-Lay North America Inc.'s Lay's salt-and-vinegar-flavored potato chips fails to specify whether the vinegar flavoring is natural or artificial. Allred v. Frito-Lay N. Am., Inc., No. 17-1345 (S.D. Cal., entered March 7, 2018). The plaintiff couple filed similar lawsuits against Kellogg and Frito-Lay concurrently in July 2017, and Kellogg's motion to dismiss was denied in February 2018. The court held that the suit is not preempted by U.S. Food and Drug Administration regulations and found plausible the allegation that a reasonable consumer might be deceived by the Lay's labeling.

A federal court in California has denied a motion to dismiss a putative class action alleging false advertising of Kellogg Co.'s Pringles Salt & Vinegar chips, finding the plaintiffs adequately pleaded all elements of the complaint, including reasonable customer confusion and claims under state consumer-protection laws. Allred v. Kellogg Co., No. 17-1354 (S.D. Cal., entered February 23, 2018). The court rejected Kellogg’s arguments that the plaintiff failed to prove that the company uses artificial flavoring and that the suit was filed as a means to test whether their “guess” was correct during discovery. The court found that the plaintiffs specified “in great detail the distinction between the natural and artificial versions of the ingredients from how they are made to how they are distinguished on a label. Moreover, Allred did allege which version Kellogg uses in its products.” The court also found that the plaintiffs adequately pleaded a violation of the…

MJS America LLC, maker of “Majans Bhuja Snacks,” faces a putative class action alleging that the primary ingredients of its “Ancient Grains Twists” are rice, peas, tapioca and sunflower or canola oil rather than ancient grains. Louis v. MJS America LLC, No. 18-1046 (E.D.N.Y., filed February 18, 2018). The plaintiff asserts that she paid a premium price for the product because she understood “Ancient Grains Twists” to mean that the snack was made exclusively from ancient grains, but the product allegedly contains only “non-substantive” amounts of chia and quinoa seeds, which the complaint describes as “pseudocereals among ancient grains.” Claiming false advertising, breach of express and implied warranties of merchantability, fraud and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.

The Trademark Trial and Appeal Board has denied Hy-Vee Inc.'s application to register the “Peaceful Piranha” mark for a line of snack foods, deeming the mark to be too similar to the mark for an existing line of “Piraña” snack foods. In re Hy-Vee, Inc., No., 87120774 (T.T.A.B., entered February 6, 2018). Finding “piranha” to be the dominant portion of the mark, the board found the term likely to confuse consumers unfamiliar with Spanish because they may read the pronunciation of the terms as identical. Further, consumers who understand Spanish may be confused because they would understand the cognate terms as a reference to the fish. Although Hy-Vee argued that “peaceful” and “piranha” are counterintuitive, creating an entirely different connotation with no association to “vicious” piranha fish, the board found the term “peaceful” was not likely to distinguish the marks because “it would merely indicate an atypical piranha, possibly for use…

Barcel USA, maker of Takis chips, faces a putative class action filed by a plaintiff alleging that four-ounce bags of Zombie and Guacamole tortilla chips contain as much as 64 percent nonfunctional slack-fill. Morrison v. Barcel USA, LLC, No. 18-531 (S.D.N.Y., filed January 22, 2018). The plaintiff compared the Takis bags to similarly sized bags of Doritos chips, which allegedly contain 33 percent slack fill. She alleges that her economic injury was equivalent to the proportion of the purchase price she paid for the slack-fill. Claiming deceptive and unfair trade practices, false advertising and common-law fraud, the plaintiff seeks class certification, injunctive relief, restitution, disgorgement, damages, corrective advertising and attorney’s fees.

The maker of Luigi’s Real Italian Ice is facing a proposed class action alleging that each Luigi's cup contains 5.5 ounces of the product despite packaging listing the contents as six ounces. Orbach v. J&J Snack Foods Corp., No. 18-0321 (S.D.N.Y., filed January 12, 2018). The plaintiffs allege that both the outer packaging and the cup lids indicate that each cup contains six fluid ounces. Claiming breach of warranties, unjust enrichment, violations of New York and Massachusetts laws governing deceptive acts and practices, false advertising and fraud, the plaintiffs seek class certification, damages, restitution, injunctive relief and attorney’s fees.

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