The Physicians Committee for Responsible Medicine (PCRM) has filed a lawsuit seeking a response to its petition calling for the withdrawal of the federal government’s “current MyPyramid food diagram and dietary guidelines” and the adoption of PCRM’s “Power Plate food diagram and dietary guidelines.” PCRM v. Vilsack, No. 11-00038 (D.D.C., filed January 5, 2011). Brought against the secretaries of the U.S. Department of Agriculture (USDA) and Department of Health and Human Services (HHS), the complaint for injunctive relief calls the agencies’ food diagram “ineffective and confusing” and alleges that it “fails to promote overall health and well-being.” PCRM contends that USDA and HHS have violated the Administrative Procedure Act by failing to respond to its petition in a “reasonable time.” PCRM’s “Power Plate” would eliminate all animal-derived products from the diet.

A Florida resident has filed a putative class action against Phusion Projects, LLC, claiming that the company’s Four Loko® caffeinated alcoholic beverage “causes sickness and alcohol poisoning, and even death.” Thomas v. Phusion Projects, LLC, No. 11-20035 (S.D. Fla., filed January 5, 2011). Asserting damages in excess of $5 million, she seeks to certify a class of Florida consumers, alleging violations of the state’s Deceptive and Unfair Trade Practices Act and unjust enrichment. While the named plaintiff purportedly experienced ill effects from consuming the product, she claims injury from being “deprived of the benefit of her bargain [spending] money purchasing Four Loko at a premium price when Four Loko actually had less value than was reflected in that price she paid for Four Loko.” She seeks an injunction to stop the company from making deceptive claims about the product, restitution, disgorgement, the establishment of a constructive trust from excessive revenues derived from the product’s sale, actual damages, attorney’s fees, costs, and interest.

According to a news source, a New York resident has filed a putative class action in a California federal court against a company that makes salad dressings, alleging that its products are falsely advertised as low in fat and calories, when they are apparently neither. Cooperman v. Galeos, LLC, No. 10-1815 (C.D. Cal., filed November 29, 2010). The Miso Dressings® at issue are purportedly featured on the reality TV show “The Biggest Loser.” The plaintiff alleges that independent testing shows the products are not as advertised and that she would not have purchased the products had she known the truth. Seeking damages in excess of $5 million, the plaintiff alleges violations of California’s unfair competition and false advertising laws, as well as the Consumers Legal Remedy Act, and breach of warranty, negligent misrepresentation, and unjust enrichment. See Mealey’s Class Actions, December 17, 2010.

FIJI Water Co. has reportedly been sued for allegedly making false statements about producing carbon-negative bottled water. Worthington v. FIJI Water Co., No. __ (C.D. Cal., filed December 20, 2010). The company has allegedly claimed since 2007 that it offset 120 percent of its emissions in producing the bottled water, and the plaintiff, on behalf of a putative class of consumers, contends that this claim “induced countless consumers to pay a premium for bottled water.” The plaintiff alleges that she would not have purchased the water if she had known that the claim was deceptive and misleading; she apparently challenges the company’s carbon accounting method, referred to as “forward crediting,” and avers that the company’s water operations “do not remove more carbon from the atmosphere than they release into it.” According to the company’s Website, its reforestation program in Fiji is part of the offset program. The complaint seeks monetary damages, statutory penalties, attorney’s fees, and costs. See Reuters, January 4, 2011; Fast Company, January 5, 2011.

About The Author


For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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