A California federal court has granted certification to a class of consumers alleging that Salov North America Corp., maker of Filippo Berio olive oil, misleads consumers by labeling its oil as “Imported from Italy” even though most of the oil is produced in Tunisia, Greece and Spain. Kumar v. Salov N. Am. Corp., No. 14-2411 (N.D. Cal., order entered July 15, 2016). The court dismissed Salov’s arguments against the plaintiff serving as class representative because of her felony record and her friendship with class counsel, finding that the charge of driving under the influence does not call her honesty and integrity into question and that the plaintiff’s friend is one of several class counsel in the case. Additional details about the case appear in Issues 554 and 590 of this Update, while details on class certification in the plaintiff’s lawsuit against Safeway involving similar allegations appear in Issue 606. …
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A Florida federal court has dismissed a putative class action against The Wendy’s Co. alleging the company failed to adequately secure its customers’ financial information but granted the plaintiff leave to amend. Torres v. Wendy’s Co., No. 16-0210 (M.D. Fla., order entered July 15, 2016). The court found that while the plaintiff’s financial information had been fraudulently used to complete two transactions, “other district courts have concluded that mere fraudulent charges on debit or credit cards do not rise to the level of actual identity theft sufficient to establish standing.” Further, because the charges were reimbursed by the plaintiff’s credit union, he had “not alleged any monetary harm stemming from the two fraudulent charges.” The plaintiff also argued that he and the putative class had standing because of the threat of future harm because they must monitor for future identity theft. The court distinguished the facts at issue from a similar…
The Ninth Circuit Court of Appeals has reversed a lower court’s grant of summary judgment in favor of Jim Beam Brands Co. in a lawsuit alleging the company infringes JL Beverage’s Johnny Love Vodka® trademarked logo, an image of puckered lips. JL Beverage Co. v. Jim Beam Brands Co., No. 13-17382 (9th Cir., order entered July 14, 2016). Details on the complaint appear in Issue 387 of this Update. Bottles of Johnny Love Vodka® feature the name of the brand with a set of puckered lips replacing the “O” in “Love,” which are then colored to represent the flavor of the alcohol. In 2010, Jim Beam Brands redesigned the Pucker® Vodka brand to emphasize a similar set of puckered lips and variety of colors alternated to coordinate with the flavor of the vodka. JL Beverage filed an infringement lawsuit after the company’s customers reported confusion about Pucker’s redesign; the district…
The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed initiating a regular rulemaking process to extend until December 30, 2017, an emergency measure that allows retailers to use standard point-of-sale warning messages for bisphenol A (BPA) exposures from canned and bottled foods and beverages. Under Proposition 65 (Prop. 65) regulations, consumer products that contain any chemical known to the state to cause reproductive toxicity or cancer must display a “clear and reasonable” warning on “labeling, shelf tags, shelf signs, menus or any combination thereof as long as the warning is prominent and conspicuous.” Taking into account comments received on the emergency measure, OEHHA believes that the proposed regulation “will provide consistent, informative, and meaningful warnings to consumers about significant exposures to BPA.” These warnings will included a link to OEHHA’s website, “which will contain fact sheets, links to informational materials on BPA from other authoritative…
The U.K. Advertising Standards Authority (ASA) has upheld two complaints alleging that advertisements touting Kellogg Co.’s Special K® products as “full of goodness” and “nutritious” violated broadcast (BCAP) and non-broadcast (CAP) advertising codes for food, food supplements and associated health claims. The complaints targeted a TV ad for Special K® porridge that included supported health claim related to vitamin B2, as well as website claims regarding the product’s “unique Nutri K™ recipe.” According to ASA, the agency “shared Kellogg’s view that the claim ‘full of goodness’ was a reference to a general, non-specific health benefit of the product and as such, we agreed that Kellogg was required to accompany it with a specific authorized health claim.” But because the authorized vitamin B2 claim did not immediately follow the general health claim, ASA found the ad in breach of BCAP Code Rule 13.4.3. The watchdog also felt that the website advertisement…
A study examining data from 299,381 adults in England and Wales has concluded that a 1-percent increase in alcohol beverage prices would result in 6,000 fewer emergency department (ED) visits for violence-related injuries. Nicholas Page, et al., “Preventing violence-related injuries in England and Wales: a panel study examining the impact of on-trade and off-trade alcohol prices,” Injury Prevention, July 2016. After controlling for the effects of poverty, income inequality, youth spending capacity, and seasonality, researchers with Cardiff University’s Violence Research School report that an increase in alcohol beverage prices is negatively associated with violence-related injuries whether the beverages are sold on-trade (“venues where alcohol is sold and consumed”) or off-trade (“venues where alcohol is sold for household consumption”). “There are important implications from these findings for public health and policy. In the long term, evidence from this study suggests that government policies that seek to reduce poverty and financial inequality…
A deaf consumer has filed a lawsuit against Taco Bell Corp. and two franchisees alleging the company discriminated against her by refusing to allow her to order from the drive-through window. Cirrincione v. Taco Bell Corp., No. 33-0001 (D.N.J., filed July 13, 2016). At one location, the plaintiff alleges she wrote her order on a piece of paper and handed it to a Taco Bell employee at the drive-through window, and a manager then “berated Plaintiff for utilizing the drive through and for placing her order at the ‘pick-up’ window” because it “interfered with the desired flow of business.” At another location, the plaintiff asserts she again wrote her order and handed it to an employee, then “the note was slipped back through the drive-through window,” the window was shut and the order was not processed, “and no Taco Bell employee communicated with Plaintiff in any way, leaving Plaintiff humiliated,…
A California federal court has dismissed a claim of negligent misrepresentation in a lawsuit alleging that Safeway Inc. underfilled its tuna cans by 10 to 20 percent, according to testing conducted by the U.S. National Oceanic and Atmospheric Administration. In re Safeway Tuna Cases, No. 15-5078 (N.D. Cal., order entered July 13, 2016). Details about the complaint appear in Issue 584 of this Update. In a motion to dismiss, Safeway challenged the plaintiffs’ claims of unjust enrichment and negligent misrepresentation. The court dismissed arguments that unjust enrichment is not a cause of action in California, finding that the claim could be construed as a quasi-contract claim. Safeway also argued that the negligent misrepresentation claim was barred by the economic loss rule, which “requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise.” Because…
The U.S. Federal Trade Commission (FTC) has issued warning letters to 28 unnamed companies that allegedly represent themselves as participants in the Asia-Pacific Economic Cooperative (APEC) Cross Border Privacy Rules system despite failing to meet the requirements underlying that claim. According to FTC, certification is granted based on the following data privacy principles: (i) preventing harm, (ii) notice, (iii) collection limitation, (iv) use choice, (v) integrity, (vi) security safeguards, (vii) access and correction, and (viii) accountability. The FTC warning letters instructed the companies to remove the APEC certification claims from their websites and notify the agency of completion or provide documentation supporting the claims. See FTC Press Release, July 14, 2016. Issue 611
The U.S. Food and Drug Administration (FDA) has filed an opposition to a petition for a writ of mandamus seeking a response to several consumer groups’ petition to prohibit perchlorate, an additive currently approved for limited use in food packaging. Breast Cancer Fund v. FDA, No. 16-70878 (9th Cir., petition filed July 8, 2016). The groups’ petition urged the Ninth Circuit Court of Appeals to compel FDA to respond to their December 2014 food additive petition, arguing the agency was required to respond by June 2015. Details about the petition for a writ of mandamus filed by the groups—which include the Center for Environmental Health, Center for Food Safety, Center for Science in the Public Interest, Environmental Working Group and the Natural Resources Defense Council—appear in Issue 599 of this Update. FDA’s response first challenges the group’s standing to sue. “Even if petitioners could demonstrate that perchlorate poses some risk…
