In an appeal from a National Advertising Division investigation initiated by Hill’s Pet Nutrition, a National Advertising Review Board (NARB) panel has recommended that Blue Buffalo Co. cease implying that other pet food manufacturers are “fooling” their customers on pet food nutrition. They found that the message of “fooling” was expressly or impliedly in several of Blue Buffalo’s advertisements without support. In addition, the NARB panel recommended that Blue Buffalo change its “True BLUE Test” chart on its website because it “reasonably conveyed the inaccurate message that the absence of checkmarks for a manufacturer meant that all of that manufacturer’s pet food products had specified ‘undesirable’ ingredients and none of that manufacturer’s pet food products has specified ‘desirable’ products.” The chart includes lines indicating that a brand’s products either always or never contain particular ingredients, and NARB found that the phrasing, though accurate, could imply inaccurate information to consumers. For…
Category Archives Issue
The National Advertising Division (NAD) of the Council of Better Business Bureaus’ Advertising Self-Regulatory Council (ASRC) has recommended that Chobani, Inc. cease airing what it called “Farmland” commercials, “the centerpiece of the company’s campaign to promote its ‘Simply 100’ Greek yogurt.” A rival yogurt company challenged a number of Chobani TV ads that “featured two ‘farm’ settings—a synthetic farm where ‘other 100-calorie yogurts’ were made from the contents of test tubes and plastic cows were filled with powdered chemicals and a real farm with boxes of fresh fruit and live cows.” While the ads did not name other yogurt makers or products, the challenger contended that the message conveyed was that its products do not contain real fruit; they are made with fake milk or milk with chemical additives; its Greek yogurt is “entirely artificial, and unwholesome, unhealthful, and/or harmful to consumers”; and Chobani’s product is the best-tasting 100-calorie Greek…
Former Rancho Feeding Operations co-owner Robert Singleton has agreed to plead guilty to one count of aiding and abetting the distribution of condemned and diseased cattle in violation of the Federal Meat Inspection Act and will testify against the other owner of the now-defunct slaughterhouse operation and its employees. United States v. Singleton, No. 14-cr-441 (N.D. Cal., entered August 22, 2014). Additional details about the criminal allegations appear in Issue 535 of this Update. As part of the agreement, Singleton, who is 77, will cooperate with the U.S. attorney’s office, surrender any assets acquired as a result of the alleged illegal conduct, and permanently cease and desist from owning, operating or managing a meat-processing facility or slaughterhouse. The agreement contains admissions as to all of the conduct alleged in the information filed against Singleton, including instructing employees to swap the heads of healthy cattle for those of diseased cattle before…
According to a news source, a 600-pound man, who worked as a Hometown Buffet restaurant manager, has filed a lawsuit under the Americans with Disabilities Act against OCB Restaurant Co. in a Connecticut federal court, alleging that he was fired and replaced with a worker who “is not morbidly obese and does not suffer from chronic knee pain.” Flanders v. OCB Restaurant Co., LLC, No. 14-1239 (D. Conn., filed August 27, 2014). See Courthouse News Service, August 28, 2014. Issue 536
A fast-food worker in Oregon has reportedly sued her former employer, seeking $242,000 in damages on the ground that she was discharged because she became pregnant, after being told by general managers during a staff meeting that workers such as the plaintiff were not allowed to become pregnant because “they needed to be present and available at any time in order to perform their duties.” Melesio-Rojas v. Si-Pac Foods d/b/a Del Taco Gresham, No. n/a (Multnomah Cty. Cir. Ct., unknown filing date). According to a news source, the plaintiff claims that she was fired when she became noticeably pregnant after a customer complained that he did not receive all of his food, a reason she claims was “an excuse to terminate her because of her pregnancy.” The restaurant’s attorney has apparently indicated that the worker’s pregnancy-discrimination complaint with the Oregon Bureau of Labor and Industries lacked sufficient evidence to support…
Hershey Co. has filed a complaint in Pennsylvania federal court alleging that LLB Imports infringes its trademarks and trade dress for several of its products, including Reese’s, York, Cadbury, Malteser, Kit Kat, and Rolo. Hershey Co. v. LLB Imports LLC, No. 14-1655 (M.D. Penn., filed August 25, 2014). According to the complaint, LLB Imports has been selling Toffee Crisp, Yorkie, Maltesers, Cadbury, Kit Kat, and Rolo products manufactured outside of the United States bearing nutritional information panels required by other countries, and the sale of the products allegedly infringes trademarks and trade dress owned by or exclusively licensed to Hershey. In addition to several trademark infringement claims, the candy company alleges that Toffee Crisp infringes the trade dress for Reese’s, citing its shade of orange and outlined yellow script, as well as the trade dress of Cadbury, Kit Kat and Rolo. Hershey asks for an injunction, a declaration that LLB violated the…
A New York federal court has allowed Lanham Act claims for the Stolichnaya trademark to proceed in a long-running case between a Russian state-chartered company and several international beverage companies. Fed. Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., No. 14-712 (U.S. Dist. Ct., S.D.N.Y., order entered August 25, 2014). Federal Treasury Enterprise Sojuzplodoimport (FTE), owned by the Russian Federation, alleges that it owns the Stolichnaya trademarks, but SPI Spirits purports to be the private successor to the state-owned company that owned the trademarks before the Soviet Union dissolved and several public entities became private companies. The Second Circuit previously held that FTE lacked standing because it was neither an assign nor legal representative under the Lanham Act. Since that ruling, the Russian Federation assigned its rights to the Stolichnaya trademark to FTE, and the New York federal court has found that the assignment cures FTE’s previous lack of standing issue.…
The Ninth Circuit Court of Appeals has denied a request for interlocutory review of a class certification ruling in an action alleging that Blue Diamond Growers’ almond milk is mislabeled as “All Natural” and the company hides its added sugar content by listing “evaporated cane juice” (ECJ) on its label instead. Blue Diamond Growers v. Werdebaugh, No. 14-80084 (9th Cir., order entered August 22, 2014). Additional details about the suit appear in Issue 525 of this Update. Blue Diamond challenged the district court’s ruling that the class was ascertainable, arguing that the decision “exacerbates a split of authority amongst district courts in this Circuit over the threshold showing that putative class representatives must make to demonstrate an ascertainable class in food mislabeling cases. The Third Circuit Court of Appeals—the only circuit to squarely resolve the issue—holds that sales records or other reliable evidence of product purchases must be available for a…
A district court erred in denying class certification and granting summary judgment to Sturm Foods and its parent company Treehouse Foods in a putative class action accusing the coffee manufacturer of misleading consumers to believe its Keurig-compatible coffee pods contained high-quality coffee rather than low-quality instant coffee, the Seventh Circuit Court of Appeals has decided. Suchanek v. Sturm Foods, Inc., No. 13-3843 (7th Cir., order entered August 22, 2014). The court found that the district court’s reasoning for denying class certification would make consumer class actions nearly impossible. Combined from four separate consumer protection lawsuits, the case centers on Sturm’s Grove Square Coffee (GSC) pods. The Keurig K-Cup typically contains ground coffee beans and a filter system, but the filter technology was protected by a patent until 2012. In 2010, Sturm began manufacturing pods that could be used in Keurig brewers, but to avoid infringing the patent, the company apparently…
New York City Council Member Benjamin Kallos (D-Upper East Side) has introduced legislation (442-2014) that would allow toy giveaways, digital rewards and other incentives only in children’s meals that meet strict nutritional requirements. If adopted, the Healthy Happy Meals Act would define “incentive item” as (i) “any toy, game, trading card, admission ticket or other consumer product, whether physical or digital, with particular appeal to children, which is provided directly by the restaurant,” or (ii) “any coupon, voucher, ticket, token, code or password which is provided directly by the restaurant and is redeemable for or grants digital or other access to any toy, game, trading card, admission ticket, or other consumer product with particular appeal to children.” The proposed rules would require children’s meals that offer such items to contain one serving of fruit, vegetable or whole grains and less than 500 calories and 600 milligrams of sodium. In addition,…
