Days after the U.S. Federal Trade Commission (FTC) filed a lawsuit to enjoin Gerber Products Co. from claiming that its Good Start® Gentle infant formula helps reduce allergies in children, a consumer filed a putative class action in Arizona federal court alleging the same facts. Werthe v. Gerber Prods. Co., No. 14-8216 (D. Ariz., filed November 3, 2014). Additional information about FTC’s lawsuit against Gerber appears in Issue 543 of this Update. Like the FTC complaint, the consumer action alleges that Gerber advertises the partially hydrolyzed whey protein (PHWP) in its Good Start® Gentle formula as reducing the risk of atopic dermatitis in infants. As a result, Gerbercharges “a significant premium” over other infant formulas, the plaintiff asserts. The complaint cites Gerber’s labeling, which allegedly promises thatits product is the “1st & Only Routine Formula to Reduce the Risk of Developing Allergies” and that it “Meets FDA [U.S. Food and Drug…
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Reversing a lower-court decision, a California appeals court has ruled that state dram shop statutes—meant to protect some sellers of alcohol beverages from liability for injuries related to the beverages’ consumption—do not provide immunity for City Brewing Co. in a lawsuit alleging that the company was negligent in producing Four Loko. Fiorini v. City Brewing Co., No. F067046 (Cal. Ct. App., 5th Dist., order entered November 6, 2014). After drinking two 23.5-ounce cans of Four Loko, the plaintiff’s son was shot to death by police in October 2010. The plaintiff alleged that City Brewing, which brewed, bottled and labeled Four Loko, was liable for negligence for producing an alcohol beverage in a nonresealable can apparently containing alcohol “equivalent to five or six 12-ounce cans of beer” and “as much caffeine as two cups of coffee” because “combining alcohol, a depressant, with caffeine and other stimulants created a product that had unreasonably…
An Illinois federal court has declined to certify a class in a lawsuit alleging that Skinnygirl Margarita, a pre-mixed alcohol beverage sold by Skinnygirl Cocktails, and its founder, Bethenny Frankel of reality show "The Real Housewives of New York City" and talk show "Bethenny," was labeled as “all natural” despite containing the non-natural preservative sodium benzoate. Langendorf v. Skinnygirl Cocktails, LLC, No. 11-7060 (N.D. Ill., order entered October 30, 2014). The plaintiff sought to represent a class of all consumers who purchased Skinnygirl Margarita spirits in Illinois after March 1, 2009, but the court identified several shortcomings with the proposed class. First, the court found that the plaintiff failed to offer a valid method to identify the purchasers. “Plaintiff says class membership can be verified by the dates of purchase, the locations of retail establishments, the frequency of purchases, the quantity of purchases, and the cost of purchase, but does not…
A California federal court has granted a motion for reconsideration in a case alleging that Wallaby Yogurt Co. includes “evaporated cane juice” (ECJ) on its ingredient lists rather than what plaintiffs allege is the more common name, sugar. Morgan v. Wallaby Yogurt Co., No. 13-296 (N.D. Cal, order entered November 5, 2014). Wallaby had moved for reconsideration of prior orders allowing the case to proceed. The text-only docket indicates that the motion for reconsideration has been granted and the case stayed, with a written order to follow. The stay follows a series of similar actions in other cases after the U.S. Food and Drug Administration (FDA) announced in March 2014 that it would reconsider its 2009 draft guidance discouraging use of the term. In two similar putative class actions, courts have extended stays originally imposed in May 2014 because FDA has not yet issued further guidance. Figy v. Lifeway Foods, No.…
A federal court in California has decertified a damages class in litigation alleging that Dole Packaged Foods, LLC misleads consumers by labeling 10 of its fruit products as “All Natural Fruit” because they contain allegedly synthetic ingredients ascorbic acid and citric acid. Brazil v. Dole Packaged Foods, LLC, No. 12-1831 (N.D. Cal., order entered November 6, 2014). The court found flaws in the regression model that the plaintiff’s expert (Oral Capps) used to determine the price premium attributable to the company’s use of the “All Natural Fruit” label statements, finding that the model “does not sufficiently isolate the price impact” of the labeling statement. The court disagreed with Dole that the expert performed a “price” regression rather than a “sales” regression and thus “measured the wrong thing.” According to the court, while the initially proposed analysis differed from the one actually carried out, given that the expert had initially proposed…
The D.C. Circuit Court of Appeals has denied the requests of meat-producer interests to rehear arguments in a case challenging the U.S. Department of Agriculture’s (USDA’s) country-of-origin labeling (COOL) rules as a violation of First Amendment rights. Am. Meat Inst. v. USDA, No. 13-5281 (D.C. Cir., order entered October 31, 2014). Under the regulations, amended in May 2013, retailers of “muscle cuts” are required to list on product labels the countries of origin and production as to each step of production—born, raised or slaughtered. Additional details about the en banc ruling upholding the regulations appear in Issue 532 of this Update. USDA amended the rules to address an adverse World Trade Organization (WTO) determination that they discriminated against Canadian and Mexican livestock producers. The effort was unsuccessful, as WTO again ruled in favor of Canada and Mexico. Information about that decision appears in Issue 542 of this Update. Issue 544
The U.S. Supreme Court (SCOTUS) has denied certiorari to petitioners alleging that Aaroma Holdings LLC is liable for personal injury claims stemming from the use of diacetyl by Emoral Inc., which declared bankruptcy in 2011 after Aaroma bought its assets in 2010. Diacetyl Plaintiffs v. Aaroma Holdings LLC, No. 14-71 (U.S., cert. denied November 3, 2014). The petitioners had argued that freeing Aaroma from liability would create a loophole for companies looking to avoid tort liability by encouraging them to sell assets before filing for bankruptcy. Additional information about the certiorari petition appears in Issue 532 of this Update. Issue 544
Voters in Berkeley, California, have passed a 1-cent per-ounce tax on sugar-sweetened beverages (SSBs) and the added-calorie sweeteners used to make them. Revised by court order to reference “sugar-sweetened beverages” as opposed to “high-calorie, sugary drinks,” the ballot measure garnered 75 percent approval to make Berkeley the first city in the nation to adopt a soda tax. The new tax will apparently cover (i) SSBs distributed to stores and restaurants and (ii) sweeteners distributed to restaurants and stores “where they are used to make sugar-sweetened beverages for customers.” Exempted from taxation are sweeteners distributed to stores for direct sale to consumers as well as milk-based beverages, baby formula, alcoholic beverages, medical formulations, and fruit and vegetable juices that do not contain added-calorie sweeteners. Under the new rules, added-calorie sweeteners include sucrose, fructose, glucose, and high-fructose corn syrup, but not “natural, concentrated, or reconstituted fruit or vegetable juice or any combination thereof.”…
The U.S. Government Accountability Office has issued a report related to its review of the federal government’s oversight of pesticide residues in food. More specifically, the report discusses the congressional watchdog’s analysis of Food and Drug Administration (FDA), U.S. Department of Agriculture (USDA) Food Safety and Inspection Service and USDA Agricultural Marketing Service pesticide residue data, the data’s reliability, and the agencies’ methods for sampling foods for testing. Among other things, GAO recommends improvements in FDA’s methodology and disclosure of the limitations in both agencies’ monitoring and data collection efforts. Issue 544
The Organic Trade Association (OTA) has reportedly submitted two petitions to the National Organic Program (NOP) requesting changes to the National List of Allowed and Prohibited Substances for organic processing and handling. Citing recent innovations, OTA has asked NOP to strengthen the rules governing natural flavors in certified products to require the use of organic flavors when commercially available. The group has also moved to strike lignin sulfonate from the list “as an allowed flotation agent in postharvest handling of organic produce.” In particular, OTA argues that “the number of organic flavors in the marketplace is now substantial,” negating the need for many natural flavors that must still be made without the use of synthetic solvents, synthetic carriers, artificial preservatives, genetic engineering, or irradiation. The association also notes that innovations in organic pear handling have rendered lignin sulfonate obsolete, especially since the National List already includes an alternative floating agent…
