A federal court in California has granted in part the motion for summary judgment filed by Twinings North America in a putative class action alleging that the company misbrands its tea products by stating that they are a “Natural Source of Antioxidants” and “a natural source of protective antioxidants." Lanovaz v. Twinings N. Am., Inc., No. 12-2646 (N.D. Cal., order entered January 6, 2014). Regarding the plaintiff’s claims that the company’s labels imply protection from disease, the court found the product representations “too general to relate to a ‘health-related condition’” and thus dismissed these claims. As to causation, the issue was whether the plaintiff admitted in her deposition that she did not rely on the green tea and Earl Grey tea labels or the company’s website when making her purchasing decisions. The court refused to read her deposition transcript as narrowly as the company urged and found that the label…
Category Archives Issue 509
A federal court in California has granted in part the motion for summary judgment filed by Bumble Bee Foods in a putative class action alleging that certain labeling claims either deceived consumers or violate state and federal law. Ogden v. Bumble Bee Foods, LLC, No. 12 1828 (N.D. Cal., order entered January 2, 2014). Information about the complaint is included in Issue 436 of this Update. The court agreed with Bumble Bee that the plaintiff failed to raise a genuine issue of material fact regarding her standing to pursue consumer-fraud claims based on the company’s purported statements about vitamin A and iron, because those statements were made on the nutrition information panel, which the plaintiff “does not claim to have read in connection with purchasing the product.” Other similar statements appeared on the company’s Website, and “Ogden concedes that she did not visit this website prior to purchasing the Sardines Mediterranean…
A federal court in California has dismissed with prejudice the second amended complaint in a putative class action alleging that Wrigley Sales Co.’s chewing gum and candy products are misbranded because the labels state that they are “sugar free.” Gustavson v. Wrigley Sales Co., No. 12-1861 (N.D. Cal., decided January 7, 2014). The court determined that the product labels do not violate federal regulations, the plaintiff failed to adequately plead her alleged regulatory violations, and the plaintiff “is attempting to impose a labeling requirement that is ‘not identical to’ federal requirements.” Thus the court ruled that the “sugar free” component of the complaint was preempted and any further amendment of the complaint would be futile. The court dismissed the remainder the complaint relating to the defendant’s alleged failure to disclose that the products “are sweetened with nutritive and non-nutritive sweeteners or to detail the percentage of the product that nonnutritive…
A federal court in California has denied the plaintiff’s motion for class certification in a suit alleging that Ben & Jerry’s Homemade deceives consumers by using “all natural” on labels for ice cream, frozen yogurt and popsicle products that contain alkalized cocoa. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 (N.D. Cal., decided January 7, 2014). Additional details about the lawsuit appear in Issue 366 of this Update. The action followed the court’s September 2012 denial of final approval for a class-action settlement in the case on the basis of issues raised by Dennis v. Kellogg, 697 F.3d 858 (9th Cir. 2012). Among other matters, the court agreed with the defendant that the plaintiff failed to establish that the class was ascertainable and that common issues predominate over individual issues. While the case was initially brought on behalf of a nationwide class of consumers, in its current posture, a…
Addressing a question of first impression, a California appeals court has dismissed a putative class action alleging that Herb Thyme Farms mislabeled its certified organically grown herbs as “USDA Organic” because the contents included a mix of organically and conventionally grown herbs. Quesada v. Herb Thyme Farms, Inc., No. B239602 (Cal. Ct. App., 2d Dist., Div. 3, decided December 23, 2013). According to the court, on appeal, the plaintiff changed her theory of liability from alleged violations of state consumer protection laws to violation of the California Organic Products Act of 2003, a federally approved state organic program. She cited Farm Raised Salmon Cases, 42 Cal. 4th 1077 (2008), to counter the trial court’s conclusion that her claims were preempted under federal law. Distinguishing Farm Raised Salmon Cases, the court was guided instead by Aurora Dairy Corp. Organic Milk Marketing & Sales Practices Litigation v. Aurora Organic Dairy, 621 F.3d 781…
Maine Gov. Paul LePage (R) has signed a bill (L.D. 718) that will require labeling for foods containing genetically modified (GM) ingredients if at least five other states or a state with a population of at least 20 million passes similar legislation. Restaurants will be exempt from the disclosure requirements, and alcoholic beverages and medical foods would not be required to carry the required labels. Those products subject to the law’s provisions would be required to contain “a conspicuous disclosure that states ‘Produced with Genetic Engineering,’” and such products could not described or identified as “natural.” Issue 509
The U.K. Advertising Standards Authority (ASA) has upheld a complaint alleging that PepsiCo International Ltd. t/a Naked Juice made antioxidant health claims on its website that were unauthorized by the EU Register of Nutrition and Health Claims for Foods (the EU Register). According to ASA, Naked Juice argued that health claim guidance issued by the European Commission failed to establish whether the term “antioxidant” “was a specific health claim or a non-specific, general health claim.” As a result, the company considered that the term was a non-specific, general health claim, “and it was therefore permissible to use it, provided it was accompanied by a specific health claim which was authorized on the EU Register” – in this case, specific claims about the Vitamin C contents of the “Green Machine” and “Mango Machine” smoothies singled out in the complaint. But ASA disagreed with this reasoning, ultimately concluding that both the commission’s…
The Food Safety and Inspection Service (FSIS) is requesting comments on its draft guidance for controlling Salmonella in hog slaughter facilities. Intended to “provide information on best practices to prevent, eliminate or reduce levels of Salmonella on hogs at all stages of slaughter and dressing,” FSIS issued the guidance in response to recent Salmonella outbreaks implicating pork. Stating that facilities improving contamination control at appropriate processing locations will “likely produce raw pork products that have fewer pathogens, including Salmonella,” the Salmonella Action Plan describes steps involved in the hog slaughter process and production of raw products, with each step targeting best practice recommendations for Salmonella contamination control. It also includes information on farm rearing and transport intended for establishments to share with their suppliers and producers. Comments will be accepted until March 7, 2014. See Federal Register, January 6, 2014. Meanwhile, a report from the Pew Charitable Trusts argues that FSIS…
The U.S. Food and Drug Administration (FDA) has announced a public meeting on February 20, 2014, in College Park, Maryland, to “discuss its proposed rule to require domestic and foreign food facilities that are required to register under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) to address hazards that may be intentionally introduced by acts of terrorism.” The agency has proposed the requirement as part of its implementation of the Food Safety Modernization Act. FDA will accept comments until March 31. See Federal Register, December 24, 2013.
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