A New York resident has filed a putative class action against The Dannon Co., alleging that because the company adds “filler materials, such as water, corn starch, and Milk Protein Concentrate” to products that it sells as yogurt, the products contain “banned additives” and, as a matter of federal law, are not yogurt, are misbranded and “cannot legally be sold in the United States.” Conroy v. The Dannon Co., Inc., No. 12-6901 (S.D.N.Y., filed September 11, 2012). A number of allegations in the complaint, including a history of yogurt-making, are carbon copies of a complaint filed in a California federal court in August 2012 against Cabot Creamery Cooperative, alleging that its Greek-style yogurt cannot be sold in the United States for similar reasons. Filed by the same law firm, that case is discussed elsewhere in this Update. Seeking to certify a nationwide class and New York subclass of product purchasers, the…
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A California resident has filed a putative nationwide class action with astatewide subclass against a yogurt maker that sells “Greek-Style Yogurt” which allegedly contains ingredients that the Food and Drug Administration (FDA) has banned from use in yogurt. Smith v. Cabot Creamery Coop., Inc., No. 12-4591 (N.D. Cal., filed August 31, 2012). According to the named plaintiff, the company sells its product as “authentic Greek yogurt” thus allowing it to “charge a substantial price premium. . . . But the price premium for Cabot Greek is even larger, because Cabot Greek has no value whatsoever. Because the product is adulterated, it cannot legally be sold at any price. It is worthless.” The plaintiff contends that by using whey protein concentrate and milk protein concentrate as filler materials to thicken the product, the company does not incur the time and expense required to produce real Greek yogurt. Among other matters, the plaintiff…
New York and New Jersey residents have filed a putative nationwide class action with two statewide subclasses against General Mills, Inc. in a Minnesota federal court, alleging that the company has violated federal and state consumer fraud laws by marketing its Nature Valley snack bars as “100% Natural” when they contain high-fructose corn syrup and other non-natural ingredients. Chin v. General Mills, Inc., No. 12-2150 (D. Minn., filed August 31, 2012). The plaintiffs also allege that the products contain highly processed high-maltose corn syrup and the texturizer maltodextrin. They allege that they relied on the company’s marketing and advertising and purchased its products “believing them to be 100% natural,” but sustained “injury in fact and lost money as a result of General Mills having misrepresented the Nature Valley Products.” According to the complaint, General Mills incorporates the “100% Natural” claim into its primary branding of the Nature Valley products and…
The Ranchers-Cattlemen Action Legal Fund, United Stockgrowers Association (R-CALF USA) has filed a complaint for declaratory and injunctive relief in a Colorado federal court against the World Trade Organization (WTO) and U.S. Department of Agriculture Secretary Tom Vilsack, alleging that WTO’s determination that the U.S. Country of Origin Labeling Act (COOL) imposes discriminatory burdens on meat imported from Canada and Mexico is contrary to U.S. law and the Uruguay Round Agreements. Made in the USA Foundation, Inc. v. WTO, No. 12-2337 (D. Colo., filed September 1, 2012). Details about WTO’s ruling appear in Issue 419 of this Update. With some 5,400 members in 45 states, R-CALF USA apparently worked with Congress to pass the COOL legislation “that reserves the USA label for only cattle born, raised, and slaughtered in the U.S.A.” The complaint alleges that the plaintiffs will lose income as a result of WTO’s ruling and that its members “are…
Beef Products Inc. (BPI) has filed a defamation lawsuit against ABC News, Diane Sawyer and two former U.S. Department of Agriculture (USDA) employees, among others, claiming that they “knowingly and intentionally published nearly 200 false and disparaging statements regarding the company and its product, lean finely textured beef (LFTB).” Beef Prods. Inc. v. ABC, Inc., No. ___ (Cir. Ct., Union Cty., S. Dak., filed September 13, 2012). The company is seeking $1.2 billion in damages. At one time, LFTB was used in some 70 percent of ground beef; it is made from fatty scraps remaining after cattle carcasses are cut into steaks and roasts. Bits of lean meat are heated and separated from the fat in a centrifuge, then treated with ammonium hydroxide gas to rid the product of E. coli or other pathogens. BPA claims that it sold more than 3.7 billion pounds of LFTB between 2003 and 2012 and…
The manager of an Iowa egg farm that recalled 550 million eggs in a 2010 Salmonella outbreak that may have sickened 2,000 people has reportedly entered a guilty plea to a charge of conspiring to bribe a public official to allow the sale of eggs that failed to meet federal standards. United States v. Wasmund, No. 12-3041 (N.D. Iowa, plea entered September 12, 2012). According to Tony Wasmund’s attorney, the former manager, who oversaw some of the enterprises owned by Jack DeCoster, is cooperating with government authorities. The indictment charged Wasmund with authorizing the use of $300 in petty cash to be used by a colleague to bribe a U.S. Department of Agriculture inspector assigned to DeCoster’s Wright County egg farm. The bribe was purportedly intended to persuade the inspector to approve the sale of shell eggs that had been withheld for falling short of applicable USDA standards. Prosecutors apparently refused…
A federal court in San Francisco has issued a temporary injunction against the city of Richmond, California, to block enforcement of a law requiring campaign mailers to include information about “major funding from large out-of-city contributors.” Cmty. Coal. Against Beverage Taxes v. City of Richmond, No. 12-4545 (N.D. Cal., order entered September 7, 2012). The ordinance calls for committees that spend at least $2,500 on a local ballot proposal campaign to list their top five contributors on each mailer. According to news sources, the city adopted the ordinance in June in the midst of a heated political dispute over a November ballot measure that would, if approved by voters, require local businesses to pay a 1-cent-per-ounce tax on the sales of sugar-sweetened beverages. The Community Coalition Against Beverage Taxes, purportedly funded by the American Beverage Association, has apparently spent in excess of $350,000 to defeat the measure, outspending the proposal’s…
A federal court in New Jersey has found that most of the named plaintiffs in putative class actions consolidated in a multidistrict litigation (MDL) proceeding lack standing to pursue claims that General Mills, Inc. violated consumer fraud laws by claiming that its Cheerios cereal products reduce cholesterol, the risk of heart disease and certain forms of cancer. In re Cheerios Mktg. & Sales Practices Litig., No. 09-2413 (D.N.J., decided September 10, 2012) (unpublished). Under a choice-of-laws analysis, the court found that California, New Jersey and New York law applied to the claims and thus dismissed four counts alleging violations of Minnesota law. The court also found that most of the named plaintiffs consumed the cereal for reasons other than health benefits, did not know what the cereal cost or had not read the product labels. Accordingly, the court granted the company’s motion for summary judgment as to five of the named plaintiffs.…
The Ninth Circuit Court of Appeals has withdrawn its previous opinion reversing an order that approved the settlement of class claims against Kellogg Co., although it has reached the same conclusion in its new opinion. Dennis v. Kellogg Co., Nos. 11-55674, -55706 (9th Cir., decided September 4, 2012). Information about the withdrawn opinion is included in Issue 447 of this Update. The plaintiffs claimed that Kellogg lacked supporting scientific evidence for marketing and promotional statements that some of its cereal products could improve children’s cognitive functions. Apparently, the court had failed to consider the plaintiffs’ preliminary argument that it could not address the validity of the cy pres distribution of funds that remained in the settlement fund. They contended that the issue “will not be ripe until it is determined that available cash remains in that fund after the claims process has concluded.” As the court observed in a footnote…
The Louisville Metro Air Pollution Control District has reportedly issued violation notices concerning emissions from a whiskey warehouse owned by Diageo Americas Supply Inc., citing odor complaints and complaints about a black, sooty substance on neighboring properties between May 2011 and May 2012. The violations apparently carry a potential penalty of $10,000 per violation per day. An air district spokesperson reportedly said, “This is not a dangerous mold. But it’s a nuisance. These people’s homes are affected by it.” The company was given until November 3, 3012, to submit a plan on how it can comply with air-quality regulations. Information about the property damage lawsuit filed by Louisville residents against the company is included in Issue 444 of this Update. See Courier-Journal.com, September 12, 2012.
