The U.S. Department of Justice (DOJ) has obtained a consent decree against Valley Milk Products LLC prohibiting the sale of more than four million pounds of milk powder products and preventing the company from manufacturing the products in the future. U.S. v. All 50 pound high heat nonfat dry milk powder (Grade A), No. 16-0076, (W.D. Va., order entered March 17, 2017). DOJ seized dry milk and dry buttermilk products at the company’s Strasburg, Virginia, facility in November 2016 after FDA inspections found unsanitary conditions and confirmed samples of Salmonella and Listeria. According to the U.S. Food and Drug Administration, the Salmonella strains were “nearly identical” to strains found at Strasburg in 2010, 2011 and 2013, indicating “the existence of persistent/resident strain and harborage” of the bacteria at the facility. DOJ also alleged the products were “contaminated with filth” after inspectors found dark brown droplets forming on metal surfaces of…
Category Archives Issue 628
Just Born, Inc. is facing a putative class action alleging its boxes of candy are underfilled by 35 percent. Escobar v. Just Born, Inc., No. 17-1826 (C.D. Cal., removed to federal court March 17, 2017). The plaintiff allegedly bought a box of the company’s Mike and Ike candy at a movie theater and claims Just Born is “falsely and deceptively misrepresenting” the amount of product contained in movie boxes of Mike and Ike and Hot Tamales candies it sells at movie theaters and retail outlets nationwide. The plaintiff claims that because she bought the product at a movie theater, where it was stored in a glass showcase, she paid for the product before she took possession of it and had no opportunity to inspect the packaging for “other representations of quantity of candy product contained therein other than the size of the box itself.” The plaintiff also relies on a…
Three plaintiffs have filed a putative class action against Dr Pepper Snapple Group, Inc., claiming that although the label on the company’s Canada Dry Ginger Ale product says “Made With Real Ginger,” the product contains “no detectable amount of ginger.” Hashemi v. Dr. Pepper Snapple Grp., Inc., No. 17-2042 (C.D. Cal., filed March 14, 2017). The plaintiffs argue that they hired an independent lab to test for ginger in the product, which is advertised on television with footage of the cans attached to ginger plants and a voice-over that asserts, “For refreshingly real ginger taste, grab a Canada Dry Ginger Ale. Real Ginger. Real Taste.” Seeking class certification, restitution, declaratory and injunctive relief, damages and attorney’s fees, the plaintiffs allege violations of the California and Colorado consumer-protection statutes as well as breaches of warranties, fraud and misrepresentation. Issue 628
Subway has issued a notice of action in Canada against the Canadian Broadcasting Corporation (CBC) following a February broadcast of the network’s “Marketplace” program that claimed DNA testing of the chain’s sandwiches showed its chicken was half processed soy. The sandwich chain is reportedly asking for $210 million in damages for defamation. According to the Toronto Star, Subway asked the CBC to retract the story but decided to file suit after the network refused. Additional details about a U.S. projected class action filed against Subway after the CBC report appear in Issue 627 of this Update. See Fortune, March 17, 2017, Issue 628
An Oregon plaintiff has filed a putative class action against the makers of Cascade Ice Coconut Water alleging the product contains no coconut. Silva v. Unique Beverage Co., LLC, No. 17-0391 (D. Or., filed March 9, 2017). The complaint alleges that “[d]espite the large colorful coconuts and the word 'Coconut' that defendant puts on the front of its label, defendant’s product actually contains no coconut water, no coconut juice, no coconut pulp, no coconut jelly.” The plaintiff also claims that consumers buy coconut water for its “special health qualities,” making its sales a “billion-dollar industry.” Washington-based Cascade Ice’s label lists the primary ingredients of the coconut water product as carbonated water, strawberry puree, citric acid, pear juice concentrate and “natural flavors.” For violations of the Oregon Unlawful Trade Practices Act, the plaintiff seeks equitable and injunctive relief, actual, statutory and punitive damages and attorney’s fees. Issue 628
A California federal court has postponed issuing a final dismissal order in Safeway Inc.’s proposed settlement with a putative class, ordering the parties to develop a plan for publicizing the settlement to alert other potential plaintiffs that the statute of limitations will begin to run. In re Safeway Tuna Cases, No. 15-5078 (N.D. Cal., order entered March 13, 2017). The class action, involving allegations of underfilled cans of tuna sold in Safeway grocery stores and those of its subsidiary Vons, received significant media coverage in outlets such as the Los Angeles Times and the San Francisco Chronicle. The court said it “is concerned that potential class members who may have seen such coverage would now be unaware that the case has been dismissed, and that the limitations period for filing a further suit therefore may run upon dismissal.” The U.S. Supreme Court has held that the filing of a class…
A California federal court granted Campbell Soup Co.’s motion to dismiss a putative class action claiming the company “falsely and misleadingly labeled and advertised” one of its soups, ruling that the plaintiff’s claims are expressly preempted by federal law. Brower v. Campbell Soup Co., No. 16-1005 (S.D. Cal., order entered March 21, 2017). The plaintiffs alleged that Campbell’s Chunky Healthy Request Grilled Chicken & Sausage Gumbo was mislabeled and advertised as healthy despite containing artificial trans fat. Additional details about the complaint appear in Issue 602 of this Update. Campbell contended that the plaintiff’s claims were preempted by the Poultry Products Inspection Act (PPIA) and the Federal Meat Inspection Act (FMIA), both of which prohibit the sale of products with false or misleading labeling or marketing. Pursuant to both statutes, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) inspects and approves product labels. The court agreed, noting…
A Florida federal court has dismissed part of a data breach complaint against Wendy’s, calling two of the claims “shotgun pleadings” and noting that the plaintiffs “misconstrue the basic legal principles of statutory law.” Torres v. Wendy’s Int’l, LLC, No. 16-0210 (M.D. Fla., order entered March 21, 2017). Additional details on the case appear in Issues 594 and 612 of this Update. The plaintiffs originally filed suit in February 2016 after a data breach of Wendy’s credit card payment system, but the Florida court dismissed the suit for failure to plead an injury sufficient to prove standing. Ruling on the amended complaint, the court found that the plaintiffs could establish standing based on “particularized, concrete injuries,” including late fees, loss of credit card reward points and loss of cashback awards. The court refused to dismiss a breach of implied contract count, reasoning that when a merchant invites a customer to…
The U.S. Court of Appeals for the Eleventh Circuit has overturned a Florida court's summary judgment against Ocheesee Creamery, finding that the company can sell its milk product as skim milk despite its refusal to follow a Florida law requiring skim milk to be fortified with vitamin A. Ocheesee Creamery LLC v. Putnam, No. 16-12049 (11th Cir., order entered March 20, 2017). Additional details on the lower court's rulings appear in Issues 555 and 599 of this Update. Florida initially told Ocheesee that it could sell its skim milk as "imitation skim milk," but Ocheesee objected to the description of its natural, unfortified milk as "imitation." Ocheesee rejected other suggested labels as well, including "Non-Grade 'A' Milk Product, Natural Milk Vitamins Removed," then filed a lawsuit asserting a First Amendment right to describe its product as "skim milk." The lower court granted summary judgment in favor of Florida, finding that…
The Hungarian National Assembly is reportedly considering a proposed ban on Soviet and Nazi symbols that would impose fines of up to $6.97 million and a potential prison sentence on businesses using such marks, likely including Heineken and its red star logo. The ban targets symbols related to Hungary's years of Nazi occupation and decades of communist rule, including the swastika, hammer and sickle, arrow cross and red star. Hungary's Deputy Prime Minister Zsolt Semjen, a co-sponsor of the bill, reportedly called Heineken's red star logo "obvious political content" and would not deny that the bill was retaliation for a lengthy legal battle between Heineken and a brewery in Transylvania, a region of Romania home to many ethnic Hungarians. See Reuters, March 20, 2017. Issue 628
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