Category Archives Issue 632

A study examining the health effects of sugary and artificially sweetened beverages has allegedly concluded that consumption of the latter was associated with an increased risk of stroke and dementia. Matthew P. Pase et al., “Sugar­ and Artificially Sweetened Beverages and the Risks of Incident Stroke and Dementia,” Stroke, May 2017. Based on data from more than 4,000 adults enrolled in Framingham Heart Study Offspring cohort, the study followed health outcomes for 10 years and purportedly accounted for confounding factors such as “age, sex, education (for analysis of dementia), caloric intake, diet quality, physical activity, and smoking.” The results apparently suggested that, when compared to those who abstained from artificially sweetened beverages, participants who imbibed up to six servings per day were at greater risk of stroke or dementia, with the strongest associations for ischemic stroke. “To our knowledge, our study is the first to report an association between daily…

Mast­Jagermeister SE has filed an opposition to a trademark application by apparel company Offseason Outdoors for a logo featuring a deer’s head. Mast­Jagermeister SE v. Offseason Outdoors, No. 91234087 (T.T.A.B., opposition filed April 19, 2017). Jagermeister, which marks its alcohol products with deer head images, filed its notice of opposition to Offseason’s trademark application, claiming Jagermeister has owned deer head marks since 1968.   Issue 632

A California plaintiff has filed a projected class action against Omaha Steaks alleging the company’s shipping and handling charges “greatly exceed” the actual cost of shipping items to consumers. McCoy v. Omaha Steaks Int’l, No. BC658076 (Sup. Ct. Cal., Los Angeles Cty., filed April 14, 2017). The plaintiff asserts that he was charged $15.99 in shipping and handling fees for a jar of dry rub, allegedly twice what he would have paid had the product been shipped by the U.S. Postal Service. The complaint relies on the Direct Marketing Association’s ethical guidelines on shipping charges, which purportedly recommend charges be “reasonably related” to actual costs and disclosed early in the order process.   Issue 632

Chobani LLC has reportedly filed a libel suit against Alex Jones, radio host and founder of Infowars, alleging Jones defamed the company with a report that its Idaho factory was linked to a child sexual assault case and a rise in incidents of tuberculosis. Chobani LLC v. Jones, No. 42­17­1659 (Idaho 5th Jud. D. Ct., filed April 24, 2017). Jones’ Infowars video apparently asserted that Chobani's policy of hiring refugees caused several negative effects in Twin Falls, Idaho, including a sexual assault case involving refugee minors. See Bloomberg and New York Times, April 25, 2017.   Issue 632

The Second Circuit has upheld the $50­ million settlement of an alleged milk price-­fixing conspiracy, holding that “[b]y their nature, settlements are compromises that do not provide either side with all that they might have hoped to obtain in litigation.” Haar v. Allen, No. 16­1944 (2d Cir., order entered April 18, 2017). The class action asserted that Dairy Farmers of America, Inc., Dairy Marketing Services and Dean Foods Co. conspired to suppress competition and fix prices of raw milk in the Northeast. The appellants argued that the settlement was the result of collusion between class counsel and opposing counsel and that members of the class were coerced into participation. The Second Circuit disagreed, finding the appellants confused “counsel’s willingness to negotiate in good faith toward a settlement with collusion,” noting that the district court found no evidence of impropriety after a lengthy hearing into claims of misconduct. The court also…

Kraft Heinz Foods faces a trade-­secret suit alleging it distributed documents containing confidential and proprietary drawings and specifications for plastic caps created by one of its long­-time vendors. AptarGroup, Inc. v. Kraft Heinz Foods Co., No. 17­521 (W.D. Pa., filed April 21, 2017). AptarGroup argues that Kraft distributed engineering and customer drawings providing detailed specifications for its bottle cap and closure designs documents after removing Aptar’s logos and confidentiality warnings. Aptar also asserts that among other disclosures, Kraft released specifications for its “breakthrough” snap-­top cap used for Heinz’ inverted, top­-down ketchup bottles. The complaint alleges that previous disclosures have included only “one or two ornamental designs, with no detailed specifications, and that Aptar notified Kraft of their breach of contract and asked Kraft to demand the return of the confidential information from all recipients. Claiming trade secret misappropriation and breach of contract, Aptar seeks a temporary restraining order, injunctive relief,…

A Florida plaintiff has filed a putative class action against the maker of Tabatchnick soups, alleging its products cannot be called “natural” because they contain genetically modified organisms (GMOs). Ramsaran v. Tabatchnick Fine Foods, Inc., No. 17­60794 (S.D. Fla., filed April 24, 2017). The complaint asserts that 19 Tabatchnick soups labeled or advertised as “all natural,” containing “highest quality, natural ingredients,” actually contain GMO soy, corn, canola or their derivatives. The plaintiff alleges that GMOs, which have “undergone sophisticated bioengineering,” cannot be described as “minimally processed” or natural and are therefore artificial. For alleged violations of the Florida Deceptive and Unfair Trade Practices Act, negligent misrepresentation and breach of express and implied warranties, the plaintiff seeks declaratory judgment, class certification, injunctive relief, damages and attorney’s fees.   Issue 632

A federal court has reportedly refused to dismiss a mislabeling class action alleging Dr Pepper’s Canada Dry Ginger Ale contains “real ginger” but dismissed the plaintiffs’ fraud claims with leave to amend. Fitzhenry-­Russell v. Dr Pepper Snapple Grp., Inc., No. 17­0564 (N.D. Cal., motion hearing April 19, 2017). While the court found the plaintiffs’ labeling claims “plausible,” it rejected the fraud allegations for a lack of precision. The complaint asserts that the ginger ale’s label does not include “real ginger root” as an ingredient but lists chemical flavoring instead. A similar class action against Dr Pepper was transferred to California’s Northern District in April 2017; details on that action appear in Issue 628 of this Update. See Law360, April 19, 2017.   Issue 632

The U.S. Court of Appeals for the Eighth Circuit has upheld the convictions of Midamar Corp., founder William Aossey and his son Jalel Aossey, perpetrators of a scheme to falsely label meat as halal. U.S. v. Aossey, Nos. 16­1611, 16­1688, 16­1761 (8th Cir., order entered April 14, 2017). The court rejected the defendants’ arguments that the Department of Agriculture has sole jurisdiction over criminal prosecutions pursuant to the Meat Inspection Act, ruling that the federal statute did not include a “clear and unambiguous” expression that the Agriculture Department’s authority is exclusive. Additional details on the case against Midamar and the Aosseys appear in Issues 550, 572 and 596 of this Update.   Issue 632

The Ninth Circuit has reversed the dismissal of a putative class action alleging that Gerber’s baby food labels misled consumers about the nutritional value of its baby foods despite being “technically correct.” Bruton v. Gerber Prods. Co., No. 15­15174 (9th Cir., order entered April 19, 2017). The plaintiff argued that the presence of impermissible nutrient claims on Gerber labels combined with the absence of such claims on competitors’ products misled the public into believing Gerber products were of higher quality. The district court dismissed the action, finding no genuine dispute of material fact because the labels were accurate, but the Ninth Circuit found that “even technically correct labels can be misleading.” The appeals court also reversed the lower court’s dismissals of claims for unjust enrichment and class certification.   Issue 632