A California court has approved the settlement of claims that alcohol beverage makers allegedly sold their products without providing warnings required under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Bonilla v. Anheuser-Busch, LLC, No. BC537188 (Cal. Super. Ct., Los Angeles Cty., judgment entered May 30, 2014). Additional details about the claims appear in issue 515 of this Update. Under the agreement, the companies, denying that the signage they already provided to retailers failed to comply with Prop. 65, will (i) obtain a list of all current licensees from the state Department of Alcoholic Beverage Control; (ii) mail or email to every licensee “Proposition 65 Signage”; (iii) mail or email a letter providing contact information for ordering additional signage free of charge, informing licensees of their posting obligations and describing regulatory requirements pertaining to placement; and (iv) repeat these actions every five years. They also…
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A California state trial court has approved the settlement agreement in a class action against Innovative Dining Group LLC (IDG), owner of the Boa Steakhouse and Sushi Roku chains, alleging that the restaurants falsely advertised their menu as containing Kobe beef. Hall v. Innovative Dining Grp. LLC, No. BC493144 (Cal. Super. Ct., Los Angeles Cty., motion granted May 30, 2014). Plaintiffs claimed that using the term “Kobe beef” implies that the beef came from Wagyu cattle raised and slaughtered in the Kobe region of Japan, but IDG’s restaurants advertised Kobe beef on their menus even while the U.S. Department of Agriculture banned beef imports from that region from May 2010 to August 2012. While admitting no wrongdoing, IDG has agreed to issue $20 gift certificates to customers who can prove that they purchased a Kobe beef menu item, $10 gift certificates to any class member who submits a claim, and…
As anticipated, Quality Egg LLC and its former owners, Austin “Jack” DeCoster and his son Peter, have entered guilty pleas to charges of introducing adulterated food into interstate commerce. Additional information about the plea agreement appears in Issue 524 of this Update. They admitted that the company’s shell eggs, shipped to buyers in states throughout the country, contained Salmonella in 2010. As part of the plea agreement, the company reportedly agreed to pay a $6.8 million fine. The DeCosters, who will remain free on bail pending sentencing, face a maximum sentence of up to one year in prison or five years’ probation. Sentencing has not yet been scheduled. See USA Today, June 3, 2014. Issue 525
The Center for Science in the Public Interest (CSPI) has filed a complaint against the U.S. Department of Agriculture and Food Safety and Inspection Service, seeking a declaration that the agencies have unreasonably delayed taking action on its May 2011 petition requesting that certain strains of antibiotic-resistant (ABR) Salmonella in ground meat and poultry be declared adulterants. CSPI v. Vilsack, No. 14-895 (D.D.C., filed May 28, 2014). Details about CSPI’s petition appear in Issue 396 of this Update. According to the nutrition and health advocacy organization, if these pathogens are declared adulterants, affected meat and poultry products would be barred from entering commerce, and the action “would also confirm the agency’s authority to request without evidence of illness that a company recall products containing ABR Salmonella, or—in the absence of a company’s voluntary compliance—to detain and seize those products.” The complaint refers to a number of Salmonella outbreaks, some involving…
A California federal court has certified a class of California consumers who allege that Blue Diamond Growers’ almond milk is mislabeled as “All Natural” and hides its added sugar content by listing “evaporated cane juice” (ECJ) on its label instead. Werdebaugh v. Blue Diamond Growers, No. 5:12-cv-2724 (N.D. Cal., order entered May 23, 2014). The court granted plaintiff Chris Werdebaugh’s motion for certification of the California class but rejected his request for nationwide certification because he had not shown that California had any interest that outweighed the interests of other states in determining their own policies. Werdebaugh argued that the “All Natural” label on Blue Diamond’s almond milk is misleading because the product contains chemical preservatives, synthetic chemicals and added artificial color, and the label also lists ECJ as an ingredient when sugar is the common name as required by the U.S. Food and Drug Administration (FDA). The court ruled…
A federal court in California has granted in part and denied in part the motion to dismiss in a putative class action alleging that Whole Foods Market Group misleads consumers by labeling certain food products containing sodium acid pyrophosphate (SAPP) as “All Natural.” Garrison v. Whole Foods Mkt. Group, Inc., No. 13-5222 (N.D. Cal., order entered June 2, 2014). Additional information about the complaint appears in Issue 504 of this Update. The court ruled that (i) the claims were not preempted under federal law; (ii) the primary jurisdiction doctrine did not apply (given the lack of a clear indication that the U.S. Food and Drug Administration intended to revisit its decision not to adopt formal regulations as to the meaning of “natural”); (iii) the plaintiffs sufficiently pleaded a cause of action (with the exception of allegations pertaining to marketing in various media and advertising—these claims were dismissed with leave to amend);…
A federal court in California has certified a nationwide class of consumers as to the injunctive relief requested in litigation against Dole Packaged Foods regarding its labeling claims that certain fruit products are “All Natural” despite the presence of ascorbic acid and citric acid, but limited the damages class to California consumers and the number of products at issue. Brazil v. Dole Packaged Foods, LLC, No. 12-1831 (U.S. Dist. Ct., N.D. Cal., San Jose Div., order entered may 30, 2014). Dismissed with prejudice were Dole products and label statements in the second amended complaint for which the named plaintiff did not move for class certification. An earlier ruling narrowing the claims is discussed in Issue 498 of this Update. Among other matters, the court disagreed with Dole’s argument that the class could not be ascertained because company records identifying purchasers or the products they purchased do not exist and further…
A California federal court has dismissed a putative class action against Diamond Foods Inc. alleging that its Kettle tortilla chips are mislabeled as “All Natural” despite containing synthetic ingredients. Surzyn v. Diamond Foods Inc., No. 14-cv-136 (N.D. Cal., order entered May 28, 2014). Citing a lack of basic factual assertions such as which product was the subject of the lawsuit, the court granted plaintiff Dominika Surzyn leave to amend within 21 days. Diamond Foods argued that its “All Natural” label is not misleading within the context of the rest of the packaging, which lists some of the ingredients—maltodextrin and dextrose—at issue in the case, and cited a Federal Trade Commission (FTC) determination that consumers’ understanding of “natural” is context-specific. The court rejected Diamond Foods’ assertions, finding that FTC had reached its conclusion not to dismiss any meaning and implication of the world “natural” but to decline to offer guidance on the…
A multidistrict litigation (MDL) court in Ohio has dismissed with prejudice six putative class actions involving plaintiffs from California, Colorado, Florida, New Jersey, Ohio, Pennsylvania, and Texas, alleging that Anheuser-Busch “routinely and intentionally adds extra water to its finished product to produce malt beverages that ‘consistently have significantly lower alcohol content than the percentages displayed on its labels.’” In re Anheuser-Busch Beer Labeling, Mktg. & Sales Practices Litig., MDL No. 13-2448 (N.D. Ohio, order entered June 2, 2014). Additional details about the litigation and the order consolidating the cases appear in issues 473 and 487 of this Update. Federal regulations allow malt beverages containing 0.5 percent or more alcohol by volume a tolerance of 0.3 percent in the alcohol content, “either above or below the stated percentage of alcohol,” and the affected jurisdictions have adopted or refer to these regulations in their statutes and regulations. The defendant argued in its motion…
A California bill requiring labels to disclose genetically modified (GM) ingredients in food recently failed to pass after a close vote in the state senate. Opponents argued that it would cost the average consumer as much as $400 per year for labeling a category of food that presents no risk to the public. Vermont became the first state to enact a GM ingredient-labeling law in May 2014. Additional information about that statute appears in Issue 521 of this Update. See Reuters, May 29, 2014.
