New Lawsuits Filed: “Natural” Orange Juice, Mislabeled Butter, City vs. State in Trans Fat Dispute, Lack of FDA Action on Nanotechnology Petition
Putative class actions have been filed in New Jersey and California federal
courts against Tropicana Products, Inc., alleging that the company misleads
consumers by labeling and marketing its orange juice as “100% pure and
natural,” when it actually “undergoes extensive processing which includes the
addition of aromas and flavors.” Lynch v. Tropicana Prods., Inc., No. 11-07382
(D.N.J., filed December 19, 2011); Lewis v. Tropicana Prods., Inc.,
No. 12-00049 (E.D. Cal., filed January 6, 2012).
Both plaintiffs seek to certify nationwide classes. The New Jersey plaintiff
alleges unjust enrichment, breach of express warranty, violation of the New
Jersey Consumer Fraud Act, and injunctive and declaratory relief. He requests
compensatory, treble and punitive damages; prejudgment interest; restitution;
injunctive relief; attorney’s fees; and expenses and costs of suit.
The California plaintiff, who also seeks to certify a subclass of California
consumers, alleges unjust enrichment; breach of express warranty; violation
of the state Consumers Legal Remedies Act, Unfair Competition Law and False
Advertising Law; and violation of consumer fraud laws “of the various states.”
He also requests compensatory, treble and punitive damages; prejudgment
interest; restitution; injunctive relief; attorney’s fees; and expenses and costs
of suit.
Seeking to certify nationwide and California classes, another California
resident has filed a lawsuit in state court against a retailer and the company
that makes a line of products called “spreadable butter,” alleging that it is
mislabeled because it is not butter; rather, it contains “edible oils and other
ingredients.” Simpson v. The Kroger Corp., No. BC475665 (Cal. Super. Ct., Los
Angeles Cty., filed December 21, 2011). Claiming that such labeling
violates state law governing the labeling of dairy products, the plaintiff
alleges unfair competition, untrue and misleading advertising and violation
of the Consumers Legal Remedies Act. She seeks restitution, injunctive relief,
attorney’s fees, and costs of suit.
The City of Cleveland has filed a complaint for declaratory judgment against Ohio challenging the state’s attempt to block the city’s effort to ban the sale of foods containing trans fat. City of Cleveland v. Ohio, No. 12-772529 (C.P., Cuyahoga Cty., filed January 3, 2012). The Cleveland City Council adopted an ordinance in April 2011 that prohibited retail food establishments and food service operations from offering to patrons foods containing “industrially produced trans fat,” unless the food containing trans fat were served “in a manufacturer’s original sealed package.” The ordinance was scheduled to take effect in January 2013. In June 2011, Ohio’s General Assembly amended an appropriations bill with a provision that states, in part, “No political subdivision shall . . . Ban, prohibit, or otherwise restrict food at food service operations based on the food nutrition information or on the provision or nonprovision of consumer incentive items.”
The city contends that this provision is not a general law, it “represents
an unconstitutional attempt to preempt the City’s municipal home rule
authority,” and it violates the constitution’s “one subject rule.” According to
Cleveland Mayor Frank Jackson, “The health and well-being of Cleveland is
the responsibility of the City of Cleveland and we are taking proactive steps to
help make everyone in Cleveland healthier. One of those steps was a ban on
industrially produced trans fat in local restaurants and food shops. The state’s
subsequent amendment to the Ohio Revised Code taking away our ability to
enforce this important health regulation is yet another attempt by the State
to erode the Home Rule Authority that we have a constitutional right to.” See
Office of the Mayor and Cleveland City Council News Release, January 3, 2012.
A coalition of advocacy organizations, including Food and Water Watch and
the Institute for Agriculture and Trade Policy, has filed a complaint against
Food and Drug Administration (FDA) Commissioner Margaret Hamburg,
alleging unreasonable delay in responding to a 2006 petition asking the
agency to regulate products containing nanomaterials. Int’l Ctr. for Tech.
Assessment v. Hamburg, No. 11-6592 (N.D. Cal., filed December 21,
2011).
While the 2006 petition specifically focused on sunscreen products, the
complaint also mentions other “nano-products,” such as dietary supplements,
food packaging and pet products. The plaintiffs question the safety
of nanomaterials and cite research on purported risks to human health and
the environment. According to the complaint, “Over 65 months have passed
since FDA received the 2006 Petition. To date, FDA has not directly responded
to or acted on the 2006 Petition. The public has filed approximately 15,000
comments in the FDA docket for Plaintiffs’ 2006 Petition, the overwhelming
majority calling on the agency to respond and address this pressing issue.”
The coalition seeks an order requiring FDA to respond to the petition “as soon
as reasonably practicable.”
