A California consumer has filed a putative class action against Safeway Inc. alleging the grocery retailer’s tuna cans are under-filled by 10 to 20 percent based on federally mandated fill standards. Soto v. Safeway Inc., No. 15-5078 (N.D. Cal., filed November 5, 2015). The plaintiff contends that U.S. National Oceanic and Atmospheric Administration (NOAA) testing indicates Safeway’s 5-ounce tuna cans contain an average of 2.29 ounces of pressed cake tuna despite federal standards requiring cans of that size to contain at least 2.84 ounces of product. This result was consistent across 97.9 percent (94 of 96) of the tuna cans analyzed, according to the complaint. The plaintiff alleges breach of warranties, fraud, unjust enrichment, negligent misrepresentation and violations of California’s consumer protection statutes, and he seeks class certification, compensatory and punitive damages, an injunction and attorney’s fees. Issue 584
Posts By Shook, Hardy & Bacon L.L.P.
The Animal Legal Defense Fund (ALDF) has filed a lawsuit against the U.S. Department of Agriculture (USDA) alleging a violation of the Administrative Procedure Act (APA) based on USDA’s lack of response to ALDF’s 2011 rulemaking petition requesting mandatory labeling on foie gras produced through the forced feeding of ducks or geese. Animal Legal Def. Fund v. U.S. Dep’t of Agric., No. 15-5063 (N.D. Cal., San Francisco Div., filed November 5, 2015). ALDF argues that force-fed foie gras products are mislabeled because USDA certifies them as “[i]nspected for wholesomeness” despite the fact that force-feeding “induces a metabolic disease and commonly results in the onset of all of the conditions mentioned in [USDA’s Poultry Products Inspection Act].” The organization seeks a declaration that USDA has violated the APA and an injunction compelling the agency to substantively respond to the petition. “The USDA is responsible for ensuring that all poultry products that…
CJ America Inc., maker of Annie Chun’s soup and noodle products, and a plaintiff have reached a settlement in a lawsuit alleging the company misled consumers by selling products with monosodium glutamate (MSG) while labeling the foods with the claims “No MSG Added” or “100 percent all natural ingredients.” Petersen v. CJ America Inc., No. 14-2570 (S.D. Cal., settlement agreement filed October 30, 2015). Under the agreement, CJ America will pay $1.5 million to a settlement fund distributed in $1.50 increments to purchasers of each eligible product, with a limit of 10 claims for class members without proofs of purchase. Any remaining funds will be directed to the Mayo Clinic, Action for Healthy Kids and National Farm to School Network. CJ America will also remove “No MSG Added” from its product packaging for a minimum of three years. Attorneys for the plaintiff seek 25 percent of the settlement fund ($375,000)…
Conservationist group Oceana has issued a report purportedly finding that 43 percent of salmon samples purchased from U.S. restaurants and grocery stores were mislabeled. As a follow-up to a larger study, Oceana researchers DNA tested 82 salmon samples and compared them to the names under which restaurants and grocers sold them. Of the 32 salmon samples sold as "wild salmon," the tests indicated 69 percent were farmed; "Alaskan" or "Pacific" salmon was also likely to be mislabeled, with five of the nine samples discovered to be farmed Atlantic salmon. Large grocery stores were most likely to advertise their products correctly, while restaurants mislabeled 67 percent of fish offerings. The report further notes that salmon sold out-of-season was much more likely to be mislabeled. “The federal government should provide consumers with assurances that the seafood they purchase is safe, legally caught and honestly labeled,” Beth Lowell, senior campaign director at Oceana,…
U.K. medical journal The Lancet has announced establishment of a Commission on Obesity “to provide a multidisciplinary platform to contribute to accounting systems for action and to critically analyze the systemic drivers of, and solutions for, obesity.” The 22-member commission is a partnership among The Lancet, University of Auckland, George Washington University, and World Obesity Foundation. The commission’s activities will reportedly build upon various U.N. initiatives targeting obesity and aim to “stimulate action and strengthen accountability systems for the implementation of agreed recommendations to reduce obesity and its related inequalities at global and national levels” and “develop new understandings of the underlying systems that are driving obesity,” among other things. The group’s first meeting is scheduled for February 2016 at George Washington University in Washington, D.C. See The Lancet, October 31, 2015. Issue 583
Jim Beam Brands Co. has filed a notice of opposition against an application filed by Brown-Forman Corp., maker of Jack Daniels®, to trademark Woodford Reserve Double Oaked, a bourbon product aged in two charred-oak barrels. Jim Beam Brands Co. v. Brown-Forman Corp., Serial No. 86/450,636 (T.T.A.B., notice of opposition filed October 19, 2015). Jim Beam argues that the “Double Oaked” portion of the proposed trademark is generic—or at least descriptive—because it “refers to a process of aging alcoholic beverages in a second oak barrel, which is common in the industry.” The notice cites descriptions on Brown-Forman’s website using the terms “double” and “double oaked” to describe the process of making the product. Jim Beam does not object to the registration of Woodford Reserve but requests that Brown-Forman disclaim trademark control of “Double Oaked.” Issue 583
Whole Foods Market, Inc. and video publisher The Criterion Collection have filed a notice of voluntary dismissal in a trademark dispute over Whole Foods' "Criterion Collection" line of wines. The Criterion Collection v. Whole Foods Mkt., Inc., No. 15-7132 (S.D.N.Y., notice filed October 28, 2015). The parties note that matters have been "amicably settled and adjusted between the parties" and voluntarily dismiss the case with prejudice and without costs to either party. Terms of the settlement were not disclosed. The September 2015 lawsuit alleged that Whole Foods infringed Criterion's trademarked name for a line of republished classic movies. Additional details appear in Issue 578 of this Update. Issue 583
New York City has appealed a trial court decision overturning a determination that expanded polystyrene foam (EPS) cannot be recycled, which had resulted in a municipal ban on the material. In re Restaurant Action Alliance, NYC, No. 100734 (N.Y. App. Ct., filed October 26, 2015). The appeal argues that the commissioner of the Department of Sanitation of New York conducted an extensive review over six months before reaching the determination that EPS could not feasibly be recycled and, thus, should be banned from commercial use within the city. “City Council prudently left determination of predictive questions about the future feasibility and sustainability of recycling foam waste to the judgement of the Commissioner,” the appeal argues. “[The trial court] was wrong to second guess the Commissioner’s determination based primarily on a short-term recycling plan proposed by the world’s largest foam manufacturer.” Additional information about the lower court’s ruling appears in Issue…
A German court has reportedly ordered the city of Hamburg to compensate a Spanish vegetable grower falsely linked to a 2011 E. coli outbreak that sickened more than 4,000 people in 16 countries. Vegetable cooperative Frunet asserted that it suffered €2.3 million in damages as a result of its incorrect identification as the source of the outbreak, which was later traced to fenugreek sprouts. The amount of the award has not been confirmed. See Think Spain, October 25, 2015. Meanwhile, the U.S. Court of Appeals for the Federal Circuit has affirmed a lower court’s decision that the government does not owe tomato growers compensation after the U.S. Food and Drug Administration (FDA) publicly attributed a 2008 Salmonella outbreak to red tomatoes, then later traced it to jalapeno and serrano peppers. DiMare Fresh, Inc. v. U.S., No. 15-5006 (Fed. Cir., order entered October 28, 2015). “The problem with the Tomato Producers’ contention…
The Ninth Circuit Court of Appeals has rejected as moot an appeal for reconsideration brought by the Shaka Movement in an effort to reestablish a ban on genetically modified organisms (GMOs) approved by voters in Maui County, Hawaii. Robert Ito Farm v. Cty. Of Maui, No. 15-15641 (9th Cir., order entered October 23, 2015). A federal court invalidated the statute in June 2015, finding that the ban exceeded county authority to impose fines. The unsigned appeals court opinion offered no further discussion beyond that the “motion to dismiss this appeal as moot is granted.” Additional information about the lower court’s ruling appears in Issue 571 of this Update. Issue 583
