A consumer has filed a putative class action alleging that Capri Sun®, a product of Kraft Foods Group, is misleadingly represented as “natural” because it contains citric acid and “natural flavor.” Osborne v. Kraft Foods Grp., Inc., No. 15-2653 (N.D. Cal., filed June 12, 2015). The complaint asserts that citric acid is created synthetically through the fermentation of glucose, while “natural flavor” is made of “unnatural, synthetic, artificial and/or genetically modified ingredients,” so neither ingredient should be part of a “natural”-labeled product. Kraft charged a premium for Capri Sun® based on that label, the plaintiff argues, and deceived consumers into relying upon that label misrepresentation when purchasing. She seeks class certification, an injunction, damages and attorney’s fees for alleged negligent misrepresentation and violations of California’s consumer-protection statutes. Issue 570
Category Archives Issue 570
A California federal court has certified a class of consumers challenging the “natural” label on Kraft’s fat-free cheddar cheese product but limited the class only to consumers who relied on that labeling when purchasing the product. Morales v. Kraft Foods Grp., Inc., No. 14-4387 (C.D. Cal., order entered June 23, 2015). The complaint had asserted that artificial coloring in the product precluded Kraft from labeling the cheese as “natural.” The court found that the proposed class met the numerosity, commonality, typicality and adequacy of representation standards, then focused on whether the common issues predominate over any individual issues. Kraft argued that the plaintiffs could not show that every member of the proposed class relied upon the “natural” representation because the term “natural” may mean different things to different people. The court disagreed but noted that Kraft could make that argument later in the legal process. Kraft also challenged the ascertainability of…
Anheuser-Busch has settled a class action alleging that the company misrepresented Beck’s® beer as brewed in Germany after a 2012 move to a St. Louis brewing facility. Marty v. Anheuser-Busch Cos., LLC, No. 13-23656 (S.D. Fla., preliminary approval entered June 23, 2015). The uncapped settlement will provide payouts to U.S. purchasers of bottles or packages of Beck’s® since May 2011, with a $50 limit for households with proofs of purchase and $12 limit for those without. Anheuser-Busch will include the phrase “Brewed in USA” or “Product of USA” on the bottles, boxes and website for at least five years. Plaintiffs’ attorneys will receive $3.5 million. Details about a similar lawsuit Anheuser-Busch settled about the origin of Kirin® beer in January 2015 appear in Issue 550 of this Update. Issue 570
France’s administrative supreme court, Conseil d’Etat, has ruled that PlasticsEurope’s challenge to the country’s ban on bisphenol A (BPA) in food-contact materials can be heard in its Constitutional Council because the legal question presented is new. The plastics group argued that the opinion from the French Agency for Food, Environment and Occupational Health and Safety that the 2012 prohibition cited as justification was inadequate because it was a “danger study” rather than an “evaluation of risks.” The Constitutional Council now has three months to rule on the case. See Bloomberg BNA, June 19, 2015. Issue 570
The U.S. Supreme Court has ruled that a provision in the Agricultural Marketing Agreement Act of 1937, a U.S. Department of Agriculture program that regulates U.S. production and sales of raisins, amounts to a constitutional taking and requires just compensation to plaintiffs and other raisin farmers. Horne v. USDA, No. 14-275 (U.S., decided June 22, 2015). The decision focused on whether a taking of personal property (here, the raisins) fell under the Fifth Amendment of the U.S. Constitution, which requires just compensation and has historically applied to real property such as land. The majority opinion, delivered by Chief Justice John Roberts, began by detailing the program, which required raisin farmers to turn over a portion of their crop yields each year to avoid oversaturating the market and causing a drop in raisin prices. The government then used those yields in social programs like school lunches or sold them overseas. The…
The Government of Barbados has announced a 10-percent excise tax on the purchase of locally produced and imported sugar-sweetened beverages as of August 1, 2015. The Healthy Caribbean Coalition (HCC) lauded the action, citing consumption of sugary drinks as a major contributing factor to escalating rates of obesity and related health conditions such as diabetes, cardiovascular disease and cancer. See Open Letter to HCC Membership, June 16, 2015. Issue 570
The European Food Safety Authority’s (EFSA’s) Panel on Contaminants in the Food Chain (CONTAM Panel) has issued a scientific opinion assessing the health risks of acute and chronic dietary exposure to chlorate, “a byproduct when using chlorine, chlorine dioxide or hypochlorite for the disinfection of drinking water, water for food production and surfaces coming into contact with food.” At the request of the European Commission, the opinion considers the presence of chlorate in both drinking water and food, setting “a tolerable daily intake (TDI) of 3 micrograms per kg (µg/kg) of body weight per day for long-term exposure to chlorate in food,” with “a recommended safe intake level for a daily intake (called the ‘acute reference dose’) of chlorate of 36 µg/kg of body weight per day.” After reviewing data collected by the EFSA Evidence Management Unit, the CONTAM Panel identified drinking water as “the main average contributor to chronic dietary exposure,”…
The Wisconsin-based Cornucopia Institute has asked the Federal Trade Commission (FTC) to investigate labeling associated with Whole Foods Market, Inc.’s Responsibly Grown fresh produce rating system for potential consumer fraud and mislabeling. According to a June 23, 2015, letter to the director of FTC’s Bureau of Consumer Protection, Cornucopia is “concerned that Whole Foods has not met the standards set forth in its recently developed ‘Responsibly Grown’ produce rating system in violation of its stated guidelines, thus grossly misrepresenting the production practices utilized in growing some of the produce it offers for sale to its customers.” Cornucopia suggests that “expedited communication” with Whole Foods resulting in a consent agreement under which signage and labeling related to the rating program are immediately removed “might best serve the public rather than investing taxpayer resources in a time-consuming comprehensive investigation that might result in monetary fines or other penalties.” Issue 570
The New York City Department of Consumer Affairs (DCA) has alleged that Whole Foods Market, Inc. “routinely overstated the weights of its prepackaged products—including meats, dairy and baked goods— resulting in customers being overcharged.” According to a June 24, 2015, press release, DCA found mislabeled weights on 80 different types of products sold at New York City locations, with 89 percent purportedly failing to meet federal standards “for the maximum amount that an individual package can deviate from the actual weight.” “The overcharges ranged from $0.80 for a package of pecan panko to $14.84 for a package of coconut shrimp,” claims the agency. “The fine for falsely labeling a package is as much as $950 for the first violation and up to $1,700 for a subsequent violation. The potential number of violations that Whole Foods faces for all pre-packaged goods in the NYC stores is in the thousands.” In particular,…
U.S. Sens. Dick Durbin (D-Ill.), Dianne Feinstein (D-Calif.) and Kirsten Gillibrand (D-N.Y.) are seeking a study from the Government Accountability Office (GAO) about the practicality of a single federal agency charged with oversight for food safety. “Given concerns about the fragmented federal food safety system in the United States and potential lessons to be learned from consolidation efforts in other countries,” the senators wrote in a June 23, 2015, letter, “we request GAO’s assistance in addressing the following questions: (1) What alternative organizational structures have been identified to streamline and consolidate the U.S. food safety system? (2) What are the costs and benefits associated with each alternative and what implementation challenges exist, if any? [and] (3) What lessons learned and best practices can be gleaned from other countries’ efforts to consolidate their food safety functions and systems?” In January 2015, the senators reintroduced with Rep. Rosa DeLauro (D-Conn.) legislation that would…
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