A consumer has filed a putative class action against The Quaker Oats Co. alleging the company misrepresents its oatmeal products as natural and “eco-friendly” despite containing glyphosate, “a potent herbicide that last year was declared a probable human carcinogen by the cancer research arm of the World Health Organization.” Wheeler v. Quaker Oats Co., No. 16-5776 (N.D. Ill., removed to federal court June 1, 2016). The complaint argues that although “[t]here is nothing unlawful about Quaker Oats’ growing and processing methods,” the company has misled consumers by claiming “that Quaker Oats is something that it is not in order to capitalize on growing consumer demand for healthful, natural products.” The plaintiff asserts that no reasonable consumer would believe that Quaker’s products “contain anything unnatural, or anything other than whole, rolled oats” after seeing Quaker’s packaging and advertising. For allegations of unjust enrichment, breach of warranties and violations of Illinois’ consumer-protection…
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A California state court has certified a class challenging the source and grade of Safeway Inc.’s olive-oil products, which are labeled as “extra virgin” and “Imported from Italy” despite being manufactured from olives grown and pressed outside that country. Kumar v. Safeway Inc., No. RG14726707 (Cal. Super. Ct., Alameda Cty., order entered May 24, 2016). The plaintiff proposed two classes: one composed of consumers who purchased the products relying on the “extra virgin” label and another with consumers who relied on the “Imported from Italy” claims. The court assessed the classes in accordance with each requirement—ascertainability, commonality, typicality, adequacy and superiority—and found the plaintiff’s class definitions demonstrably met each standard. “Defendant’s argument that Plaintiff is required to demonstrate that class members have a common understanding of what ‘extra virgin’ means is unsupported by the authorities cited, and is not well taken,” the court noted. The plaintiff also leads a challenge…
A New York appeals court has reportedly vacated a February 2016 order that stayed enforcement of New York City’s regulation requiring chain restaurants with more than 15 locations to post warning icons on menus next to items with more than 2,300 milligrams of sodium. The ruling allows enforcement to begin on June 6, 2016, with violators subject to $200 fines. The National Restaurant Association (NRA) won an emergency stay on February 29, one day before the regulation’s scheduled March 1 enforcement date. Details about the NRA’s lawsuit challenging the regulation appear in Issues 586, 595 and 596 of this Update. See Reuters, May 26, 2016. Issue 606
The U.S. Judicial Panel on Multidistrict Litigation has consolidated several putative class actions against a number of companies alleging they labeled their grated-parmesan products as “100% Parmesan” despite containing cellulose. In re 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., MDL No. 2705 (J.P.M.L., transfer order entered June 2, 2016). The consolidated cases include 16 lawsuits and 33 potential tag-along actions filed against Kraft, Target, Albertsons and others in jurisdictions across the country. The parties petitioned for centralization in the federal courts of Missouri, Minnesota, Pennsylvania and other states, but the court chose the Northern District of Illinois as “a convenient and accessible forum for actions filed throughout the country regarding products sold nationwide.” The parties also disputed whether the cases should be consolidated into a single multi-product MDL or separate MDLs grouped by the product or primary corporate defendant; the court held that “a single, multi-product MDL is…
Bompas & Parr has reportedly discontinued its “Anti-AGin Gin” after the National Advertising Division requested substantiation for claims that the product was “the alcoholic equivalent of a facial.” The company claimed the product “rejuvenates the skin while you drink” and was meant “for people who want to stay young but don’t want to give up alcohol.” The ingredients—including “drinkable collagen,” chamomile, witch hazel oil and green tea—were advertised as having skin-nourishing or healing properties. The product’s launch was reportedly accompanied by a press release calling it “a cheeky thank you” to Warner Leisure Hotels’ guests “for keeping our hotels fun and young.” The ad board noted that “humor does not diminish an advertiser’s obligation to make truthful and accurate advertising claims.” Bompas & Parr indicated that the product is no longer for sale and will not be reissued. See Advertising Self-Regulatory Council, May 26, 2016. Issue 606
The U.S. Food and Drug Administration (FDA) has published draft guidance “that provides practical, voluntary sodium reduction targets for the food industry.” Titled ‘‘Voluntary Sodium Reduction Goals: Target Mean and Upper Bound Concentrations for Sodium in Commercially Processed, Packaged, and Prepared Foods,” the guidance sets short- and long-term sodium targets for the following food categories: (i) cheese; (ii) fats, oils and dressings; (iii) fruits, vegetables and legumes; (iv) nuts and seeds; (v) soups; (vi) sauces, gravies, dips, condiments and seasonings; (vii) cereals; (viii) bakery products; (ix) meat and poultry; (x) fish and other seafood; (xi) snacks; (xii) sandwiches; (xiii) mixed ingredient dishes; (xiv) salads; (xv) other combination foods; and (xvi) baby/toddler foods. “Our goal is to promote gradual, efficient voluntary reduction of overall sodium content using effective and sustainable strategies that maintain other measures of nutritional quality,” states the agency in its guidance. “The extent and speed of reduction will…
The National Academy of Sciences, Engineering and Medicine (NAS) has published a report finding “no substantiated evidence of a difference in risks to human health between currently commercialized genetically engineered (GE) crops and conventionally bred crops, nor did it find conclusive cause-and-effect evidence of environmental problems from the GE crops.” Authored by the NAS Committee on GE Crops: Past Experience and Future Prospects, the report considers more than 900 research publications and 700 public comments, as well as feedback from 80 diverse speakers at three public meetings and 15 webinars. Concentrating on widely available GE crops such as insect-resistant Bacillus thuringiensis (Bt) crops and glyphosate-resistant crops, the report also notes that there is no evidence from U.S. Department of Agriculture data to suggest that GE crops have not yet increased yields for cotton, maize or soybeans. As a result of these findings, the committee recommends that federal agencies focus on product-based…
A consumer has filed a putative class action against Mondelez International Inc. alleging the company’s “Go-Paks,” packages of “mini” or “bite” versions of Nabisco cookie and cracker products, contain more than 25 percent slack-fill in violation of California law. Bush v. Mondelez Int’l Inc., No. 16-2460 (N.D. Cal., filed May 5, 2016). The “Go-Paks,” including Mini Chips Ahoy!, Mini Oreo and Ritz Bits varieties, are sold in opaque cups that do not indicate the quantities inside, the complaint asserts. The plaintiff argues that he relied on the cup’s size as a representation of the product he would be receiving and he would not have purchased the product had he known about the amount of slack-fill. For alleged violations of California consumer-protection statutes as well as breach of warranties, negligent misrepresentation, fraud and unjust enrichment, the plaintiff seeks class certification, an injunction, actual and punitive damages, attorney’s fees and costs. Issue…
A class of consumers in New York and California, represented by the Center for Science in the Public Interest (CSPI), has brought suit in the Eastern District of New York seeking restitution, actual and punitive damages, and injunctive relief against the Kellogg Co. for allegedly misbranding its Cheez-It® “Whole Grain” snack crackers. The complaint alleges that Cheez-It® “Whole Grain” crackers contain only a small amount of whole grain, but that the product packaging is designed in such a way as to mislead consumers to believe that the product is produced primarily with whole grains. The class contends that the primary ingredient is enriched flour, however, the product package states conspicuously the words “Whole Grain” on five of the six packaging panels. And when purchasing the crackers, lead plaintiffs sought a product that was predominantly whole grain. The complaint further alleges that the class members would not have purchased the Cheez-It®…
An Oregon state court has invalidated a local ban on cultivating genetically modified organisms (GMOs), holding that the ordinance contradicts state law preventing local anti-GMO rules. White v. Josephine Cty., No. 15-23592 (Ore. Cir. Ct., Josephine Cty., order entered May 16, 2016). The plaintiff challenged the law after he rented land within Josephine County then learned he could not grow his crops there under a May 2014 ordinance prohibiting GMO-crop cultivation. Intervenors in the case challenged the standing of the plaintiff, who described himself as a GMO sugar-beet farmer. According to the court, the intervenors argued that “the plaintiffs are posing as GMO farmers so that large chemical companies through them can attack the local ordinance.” The court disagreed, finding ample evidence to grant the plaintiff standing. Turning to the content of the ordinance, the court held that the state statute preempted the local law. “[T]he conflict could not be…
