Ruling that the named plaintiff’s claims are not typical of those of the putative class in a false-labeling suit brought against the companies that made and marketed Skinnygirl Margaritas®, a federal court in New York has denied his motion for class certification. Rapcinsky v. Skinnygirl Cocktails, L.L.C., No. 11-6546 (S.D.N.Y., decided January 9, 2013). The named plaintiff, a Massachusetts resident, allegedly purchased the product in that state as a gift for his wife who had indicated that she had been served the beverage during a party with friends and liked it. He brought the suit under New York statutes that apply to products purchased in New York and involve deceptive acts or practices involving in-state residents. He also claimed common-law breach of warranty. According to the court, the laws invoked do not protect the plaintiff’s purchases. While his alleged injury may be the same as class members, the plaintiff, “having not…
Category Archives Issue 466
A federal court in Minnesota has granted the motion for summary judgment filed by a company whose insurance carrier claimed it was not required to cover the company’s settlement of claims arising from a recall of instant oatmeal purportedly contaminated with instant milk produced at a facility where the Food and Drug Administration “detected insanitary conditions and salmonella.” The Netherlands Ins. Co. v. Main St. Ingredients, LLC, No. 11-533 (D. Minn., decided January 8, 2013). The company had supplied the instant milk to Malt-o-Meal which used it to make instant oatmeal. After the instant milk and downstream products such as the oatmeal were recalled, Malt-o-Meal sued both the supplier and the company that had produced the instant milk. While none of the supplier’s instant milk was found to contain Salmonella, the case ultimately settled for $1.4 million. The insurance company sued the supplier, Main Street Ingredients, for a declaration that…
A federal court in New Mexico has approved a consent decree of permanent injunction between the Food and Drug Administration (FDA) and Sunland, Inc., which owns a facility where peanut butter products purportedly tainted with Salmonella were produced. United States v. Sunland, Inc., No. 12-1312 (D.N.M., filed December 21, 2012). The outbreak affected “at least 35 people from 19 states,” eight of whom “were hospitalized as a result of their infection.” While the company neither admits nor denies FDA’s allegations, it agreed to take a number of actions to correct food-handling practices “that likely resulted in cross-contamination between raw peanuts and peanuts that had been roasted or brined.” The company must “develop and implement sanitation control programs; provide FDA the opportunity to inspect the facilities to assure Sunland’s compliance with the consent decree, the Food, Drug, and Cosmetic Act, and applicable regulations; and receive written authorization from FDA to resume…
A federal court in Alabama has dismissed breach of contract and warranty claims filed against a company that makes Florida Natural® orange juice and markets it as “fresh,” “100%” or “pure,” finding that the plaintiff lacked standing to bring the claims on behalf of a putative class of purchasers. Veal v. Citrus World, Inc., No. 12-801 (N.D. Ala., decided January 8, 2013). The court refused to allow the plaintiff to amend his complaint for a fourth time on the grounds that no amendment can cure its deficiencies and bad faith. According to the court, “This is plaintiff’s counsel’s fourth attempt (not counting the arguments before the MDL [multidistrict litigation] panel) to pursue a class action against defendant based on the same inherently flawed theory of liability. Upon not being included as class counsel in the MDL, plaintiff’s counsel returned here and went shopping for plaintiffs in an attempt to manufacture a…
After deciding that the plaintiff lacked standing to bring a consumer-fraud class action under the Class Action Fairness Act, a federal court in New Jersey has granted his motion to dismiss without prejudice, while denying the defendants’ cross-motion for partial summary judgment because it lacked subject matter jurisdiction. Robinson v. Hornell Brewing Co., No. 11-2183 (D.N.J., decided December 13, 2012). The plaintiff had sought declaratory and injunctive relief on behalf of a class of purchasers of Arizona beverages that contain high-fructose corn syrup and were labeled as “all natural.” He sought to certify the class under Rule 23(b)(2). According to the court, the evidence showed that the plaintiff had no intention of purchasing these products in the future and therefore could not show a reasonable likelihood of future injury from the defendants’ conduct. Thus, the court denied his motion to certify the class for lack of standing to seek injunctive…
The Eighth Circuit Court of Appeals has affirmed a $1.6 million award of damages and attorney’s fees in a contract dispute between General Mills and the company that sold it beef obtained from the Westland Meat Co. and recalled in 2008 after “[v]ideo footage from the Humane Society allegedly showed Westland employees improperly handling cattle designated for slaughter.” General Mills Operations, LLC v. Five Star Custom Foods, Ltd., Nos. 12-1731 and 12-1826 (8th Cir., decided January 7, 2013). General Mills destroyed the Progresso soups in which the recalled beef had been used. The Eighth Circuit affirmed the district court’s grant of summary judgment to General Mills on its breach-of-contract claim and dismissed as moot the company’s cross-appeal of the lower court’s grant of summary judgment to Five Star on the breach-of-warranty claims. At issue was whether Five Star had materially breached its contract with General Mills. The contract required the…
The Maine Department of Environmental Protection (DEP) has reportedly indicated its support of a state ban on the chemical bisphenol A (BPA) for infant formula packaging, but stopped short of suggesting that the chemical be prohibited from baby and toddler food containers, which environmental activists have been requesting. Maine already bans the chemical from baby bottles, sippy cups and reusable food and beverage containers, but, according to news sources, DEP officials claim that the scientific evidence is limited on whether the most common baby food containers—glass jars with metal lids that contain BPA—cause children to be exposed to the chemical. Agency officials are also apparently concerned about whether rules implementing the chemical ban would be sufficiently clear for consumers and companies to follow. News sources state that DEP is expected to make a recommendation on extending the BPA ban by the end of January 2013, and that an expanded ban…
New Mexico has joined Washington and California in considering GM (genetically modified) labeling on food products. Sponsored by state Senator Peter Wirth (D), the proposal (S.B. 18) seeks to amend the New Mexico Food Act and Commercial Feed Law to require the labeling of any food or commercial animal feed containing more than 1 percent of GM material. It would also require the label to be “conspicuous and easily understandable to consumers.” The bill is the latest in a series of state-based initiatives aiming to force companies to label foods containing GM ingredients and follows California’s Proposition 37—which was narrowly defeated in November 2012—and Washington’s I-522, a citizen-backed initiative which recently secured enough signatures to go be submitted to the secretary of state.
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has issued a notice of intent to list styrene as a chemical known to the state to cause cancer under Proposition 65 (Prop. 65), citing the National Toxicology Program’s (NTP’s) finding that styrene is “reasonably anticipated to be a human carcinogen.” Comments are requested by February 4, 2013. According to the notice, the proposed listing “meets the standard set out in the recent Court of Appeal decision in the Styrene Information and Research Council v. Office of Environmental Health Hazard Assessment (3rd District, Nov. 15, 2012) case because the NTP conclusion is based on sufficient evidence of carcinogenicity in experimental animals.” Often used in food packaging materials, styrene occurs naturally at low levels in certain shrubs and trees. California consumers must be provided with warnings about those chemicals included on the Prop. 65 list. See OEHHA Notice of Intent, January 4, 2013.
According to a news source, the United Kingdom’s Community Trade Mark Office has determined that the shape of a KitKat® bar, which Nestlé registered as a community trademark in 2006, is valid, thus barring any other confectioners from selling products with a similar shape in the European Union. Nestlé competitor Cadbury makes a similar product and sought to invalidate the mark shortly after it was registered, claiming that the trait was too general to be protected. Cadbury is reportedly considering whether to appeal the ruling. See Huffington Post, January 3, 2013.
