A California federal court has granted Blue Diamond’s motion to decertify a statewide class of consumers who alleged that the company’s almond milk product labels were misleading because they cited “evaporated cane juice” on the ingredient list rather than the alleged common name for the substance, sugar. Werdebaugh v. Blue Diamond Growers, No. 12-2724 (N.D. Cal., order entered December 15, 2014). The court had preliminarily certified the class in May 2014 on the condition that the plaintiff could provide a damages model that limited recovery to those injured by the alleged mislabeling. Upon reviewing the proposed model, the court found fundamental flaws with the method of determining damages “because Dr. Capps’ model is incapable of isolating the damages attributable to Defendant’s alleged wrongdoing. Instead, Dr. Capps’ methodology measures the ‘combined effect’ of Blue Diamond’s brand value and Blue Diamond’s use of ‘evaporated cane juice’ and/or ‘All Natural’ on the prices…
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A California federal court has granted plaintiffs’ motion for summary judgment in a case alleging that Safeway charged a class of consumers more than the prices permitted under the terms of its online service contract when the consumers purchased groceries from the grocer’s website. Rodman v. Safeway, No. 11-3003 (order entered December 10, 2014). Safeway sells groceries via its Safeway.com site, where it requires users to accept its Terms and Conditions upon registration. That agreement includes a provision about prices varying from order to order: “The prices quoted on our web site at the time of your order are estimated prices only. You will be charged the prices quoted for Products you have selected for purchase at the time your order is processed at checkout. The actual order value cannot be determined until the day of delivery because the prices quoted on the Web site are likely to vary either…
A Florida federal court has dismissed a case alleging that Campbell Soup Co. misleadingly labeled its V8 V-Fusion® Pomegranate Blueberry and Acai Mixed Berry products as “100% juice” in a way that implied they contained only the flavoring juices rather than a base mix of fruit and vegetable juices. Bell v. Campbell Soup Co., No. 14-291 (N.D. Fla., order entered December 11, 2014). The plaintiff argued that the label was misleading because the “100% juice” statement appeared so close to the flavor name on the label, but after examining each labeling statement, the court disagreed. “[W]hen a product’s flavor comes from a juice that is not the primary ingredient, the name may include the flavoring juice, without including other juices, so long as the label includes the statement ‘that the named juice is present as a flavoring.’ [T]he flavor—in this instance pomegranate and blueberry—must be ‘followed by the word ‘flavored’ in…
The French Directorate-General for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF) has released a guidance document detailing the implementation of new rules that ban the use of bisphenol A (BPA) in all food contact materials in their finished state as of January 1, 2015. The second part of a law that first prohibited BPA in products intended for children younger than age 3, the new rules apparently bar the use of BPA in (i) packaging and articles intended to come into contact with food, and (ii) containers and utensils, including kitchen utensils, tableware and dishes. These rules do not apply to industrial materials and equipment used in the production, processing, storage, or transportation of foodstuffs. See DGCCRF Guidance, December 8, 2014. In a related development, the European Food Safety Authority (EFSA) has announced that it has finalized a scientific opinion on BPA. Slated for release in January 2015, the…
The U.S. Department of Agriculture has proposed a rule that would allow anyone producing, handling, marketing, or importing certified organic products to be exempt from paying the assessments associated with commodity promotion activities like advertising. The exemption would cover all “organic” and “100 percent organic” products certified under the National Organic Program. The current rule allows the exemption to apply only to those who exclusively produce and market products certified as 100 percent organic, but the proposed rule would broaden application to include all organic products regardless of whether the person or company imports or handles nonorganic products as well. Comments on the proposed rule must be received by January 15, 2015. See Federal Register, December 16, 2014. Issue 549
A recent study has claimed that children born to women whose urinary phthalate levels during pregnancy were in the top quartile of their study cohort had lower intelligence-quotient (IQ) test scores at age 7 than their peers born to women in the quartile with the lowest exposure. Pam Factor-Litvak, et al., “Persistent Associations between Maternal Prenatal Exposure to Phthalates on Child IQ at Age 7 Years,” PLoS ONE, December 2014. According to Columbia University researchers, who analyzed data from 328 women and their 7-year-old children from the Columbia Center for Children’s Environmental Health (CCCEH) longitudinal birth cohort, “child full-scale IQ was inversely associated with prenatal urinary metabolite concentrations of DnBP [di-n-butyl phthalate] and DiBP [di-isobutyl phthalate].” Using the fourth edition Weschler Intelligence Scale for Children, the study purportedly found “significant inverse associations… between maternal prenatal metabolite concentrations of DnBP and DiBP and child processing speed, perceptual reasoning and working memory;…
Researchers with Seoul National University have published a study allegedly finding that people who drank soy milk from cans containing bisphenol A (BPA) exhibited a statistically significant increase in blood pressure. Sanghyuk Bae and Yun-Chul Hong, “Exposure to Bisphenol A From Drinking Canned Beverage Increases Blood Pressure,” Hypertension, December 2014. Involving 60 adults older than age 60, the study tracked blood pressure and urinary BPA levels over the course of three visits, during which participants consumed soy milk from either two glass bottles, two cans or one glass bottle and one can. Not only did urinary BPA increase by approximately 1600 percent in volunteers who consumed canned soy milk as opposed to soy milk from glass bottles, but systolic blood pressure also increased by approximately 4.5 mm Hg. “Because these results confirm findings from other studies, doctors and patients, particularly those with high blood pressure or heart disease, should be…
Oregon farmers who grow genetically engineered (GE) alfalfa have filed a complaint seeking a declaration that a May 20, 2014, Jackson County ordinance banning GE crops in the county conflicts with state law, or, in the alternative, damages “as just compensation for the forced destruction of their property.” Schulz Family Farms LLC v. Jackson Cty., No. 14CV17636 (Jackson Cty. Cir. Ct., Ore., filed November 18, 2014). Claiming that (i) neighbors had never complained about its GE crops, which are allegedly “more convenient and profitable to grow than conventional alfalfa,” and (ii) the farm will have to tear out GE crops already planted and refrain from replanting conventional alfalfa for four years, the Schulz Family Farms alleges damages in excess of $2.2 million. Similarly, plaintiff James Frink alleges that he will have to tear out already-planted GE alfalfa and “lose the benefit of the ten-year crop life if forced to tear out…
Months after a Florida federal court rejected a motion to dismiss a putative class action alleging that Bodacious Foods falsely labeled its cookies as “all natural,” The Cincinnati Insurance Co. has filed a lawsuit seeking a declaration that the policy the food manufacturer holds with it does not cover costs stemming from the alleged false labeling. The Cincinnati Ins. Co. v. Bodacious Food Co., No. 14-81515 (S.D. Fla., filed December 4, 2014). The insurance company asserts that Bodacious’s policy excludes coverage for the allegations of the putative class action, including (i) “’bodily injury’ or ‘property damage’ which may reasonably be expected to result from the intentional acts of the insured”; (ii) “’personal or advertising injury’ caused by or at the direction of the insured with the knowledge that the act would violate the rights of another”; and (iii) “’personal and advertising injury’ arising out of oral or written publication of material,…
Two consumers have filed a putative class action in California federal court alleging that Maker’s Mark® bourbon whisky is not “handmade,” as the alcohol brand advertises, but is instead manufactured using “mechanized and/or automated processes” with “little to no human supervision, assistance or involvement.” Nowrouzi v. Maker’s Mark Distillery, Inc., No. 14-2885 (S.D. Cal., filed December 5, 2014). Citing photos and a video tour of the distillery as evidence, the plaintiffs argue that because Maker’s Mark® uses machines to make its product, its “handmade” claim and premium pricing amount to misrepresentation and violations of California’s false advertising statute. They allege that they “purchased Maker’s Mark whisky under the false impression that the whisky was of superior quality by virtue of being ‘Handmade’ and thus worth an exponentially higher price as compared to other similar whiskies.” They seek class certification, an injunction requiring discontinuation of the “handmade” description, a corrective advertising…
