A California resident has filed a putative statewide class action against Ralphs Grocery Co., alleging that it misleads consumers by labeling its decaffeinated coffee products as “without caffeine” when they are actually, according to labeling fine print, “99.7% caffeine free.” Kopalian v. Ralphs Grocery Co., No. BC533846 (Cal. Super. Ct., Los Angeles Cty., filed January 22, 2014). The plaintiff invokes no state or federal law labeling violations, but instead claims that the labeling and packaging are “likely to confuse and mislead consumers.” He contends that he relied on the “without caffeine” labeling to make his purchase, believing that the product was 100 percent caffeine free, and chose it over other brands for this reason. Alleging breach of express warranty and violations of the state’s Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act, the plaintiff seeks injunctive relief, including a corrective advertising campaign, actual and punitive damages, restitution,…
Category Archives Issue 511
An unopposed motion for preliminary approval of a class-action settlement has been filed in a federal court in New York to resolve the claims of those who allegedly purchased Salmonella-contaminated pet food that was subject to a nationwide recall and purportedly linked to infections in people and animals. Marciano v. Schell & Kampeter, Inc., No. 12-2708 (E.D.N.Y., motion filed January 28, 2014. If approved, the settlement would provide $2 million cash to three subclasses of claimants: those who purchased but never used the recalled products, those who purchased and used the products and “sustained economic damages as a result of injury or death to animals from their consumption of recalled products,“ and those who purchased the products subject to recall and fully used them “with no resultant ill effects.” Under the agreement, the defendants would also continue to use improved quality control procedures for three years. Issue 511
A federal magistrate in Denver, Colorado, has sentenced Eric and Ryan Jensen, who owned the cantaloupe farm linked to a deadly Listeria outbreak in 2011, to five years of probation, with the first six months in home detention, 100 hours of community service each, and the payment of restitution—$150,000 each—with the money awarded to their victims. According to U.S. Attorney John Walsh, “No sentence of incarceration, restitution or financial penalty can undo the tragic damage done as a result of the contamination at Jensen Farms. Today’s sentence serves as a powerful reminder of farmers’ legal and moral responsibility for ensuring their product is safe.” Details about the charges to which the brothers pleaded guilty appear in Issue 498 of this Update. See U.S. Department of Justice News Release, January 28, 2014. Issue 511
Finding significant differences among the state laws applicable to a putative nationwide class action alleging injury to pets and economic damages from the purchase of dog treats containing chicken jerky from China, a federal court in California has denied the plaintiff’s request for class certification. Holt v. Globalinx Pet LLC, No. 13-0041 (C.D. Cal., S. Div., order entered January 30, 2014). According to the court, “[w]hile the Plaintiff maintains that the laws of California should apply to the proposed nationwide classes, the Defendants have catalogued a series of material differences between the consumer protection laws of several states and those of California, and crucially, this Court has already performed a case-specific conflict of law analysis and determined that Texas law would govern four of the named Plaintiff’s causes of action.” Agreeing that these differences were material, the court concluded that the proposed classes “do not meet the predominance and superiority…
A federal court in California has dismissed with prejudice a number of claims in a putative nationwide class action alleging that Gerber Products Co. misleads consumers and violates state and federal labeling laws by making certain nutrient-content and sugar-related claims on its baby food product labels. Bruton v. Gerber Prods. Co., No. 12-2412 (N.D. Cal., order entered January 15, 2014). Among the claims dismissed with prejudice were those relating to (i) products that the named plaintiff had not purchased and had failed, in her second amended complaint, to adequately allege how they are substantially similar to any of the purchased products; (ii) company website statements that the named plaintiff did not view, but that supported some of her claims; and (iii) the theory that Gerber breached a duty to disclose that its products were misbranded under federal and California law. Because the court found that Gerber’s remaining challenges in its motion…
A federal court in California has dismissed putative class claims relating to any product other than Mott’s 100% Apple Juice because the plaintiff failed to properly allege that the company’s numerous sauce products are mislabeled under state and federal law. Rahman v. Mott’s LLP, No. 13-3482 (N.D. Cal., order entered January 29, 2014). The court also dismissed claims under the state’s False Advertising Law, the fraud prong of the Unfair Competition Law (UCL) and the Consumers Legal Remedies Act because they were not sufficiently pleaded, and further dismissed the plaintiff’s claim for negligent misrepresentation for failure to plead justifiable reliance. The court disagreed that the action should be dismissed under the primary jurisdiction doctrine or that the UCL claim should be dismissed for failure to allege facts that would satisfy the reasonable consumer test. As to the latter, the court reiterated that this test “does not apply to claims brought…
In response to a court order requiring the parties to respond to the U.S. Food and Drug Administration’s (FDA’s) refusal at the court’s request to determine whether foods with genetically modified (GM) ingredients may be labeled “natural” or “all natural,” the parties to litigation involving tortilla chips have filed their pleadings. Cox v. Gruma Corp., No. 12-6502 (N.D. Cal., filed January 24, 2014). Information about FDA’s January 6 letter appears in Issue 509 of this Update. Gruma argues that the case continues to meet “all the factors for invoking primary jurisdiction. . . . The FDA’s response is simply that for its own procedural and budgetary reasons it does not intend to consider the referred issue at the current time in this particular posture. The FDA response, if anything, reinforces why the FDA should be the one to resolve this issue. This is particularly true because the same issue of…
New Hampshire lawmakers reportedly voted 185-162 against legislation (H.B. 660) that would have required food distributors to label foods that contain genetically modified (GM) ingredients. According to news sources, the vote not only puts a damper on the labeling fight in New Hampshire, but also sets back similar campaigns in Maine and Connecticut. Both states passed legislation requiring GM food labeling in 2013, but their laws cannot be enacted until at least four other Northeastern states enact similar statutes. Details about Maine’s GM bill appear in Issue 504 of this Update. See ConcordMonitor. com, January 23, 2014. Issue 511
The Hawaii Senate has introduced legislation (S.B. 2693) that would prohibit the sale of regular soft drinks and sugar-sweetened beverages (SSBs) in containers larger than 16 ounces. Noting that obesity is an increasingly “common and costly problem for the state,” and claiming that limiting the intake of sugar-sweetened beverages would “encourage healthier diets in the community, while offsetting economic costs associated with health care and obesity,” the bill specifically seeks to ban food establishments from (i) selling, offering for sale or providing SSBs in unsealed containers larger than 16 ounces and (ii) selling children’s meals that include such beverages. Issue 511
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has announced that, effective January 31, 2014, trichloroethylene will be listed as known to the state to cause reproductive toxicity for purposes of Proposition 65 (Prop. 65). According to OEHHA, the listing is “based on formal identification by the U.S. Environmental Protection Agency (U.S. EPA), an authoritative body, that the chemical causes reproductive toxicity (developmental and male reproductive endpoints).” The chemical is used as a solvent for a variety of organic materials and was used historically in coffee decaffeination and the preparation of extracts from hops and spices. See OEHHA News Release, January 31, 2014. Issue 511
