A California federal court has denied a motion to dismiss a putative class action alleging deceptive labeling and advertising of Yogi Green Tea Kombucha, ruling that whether a reasonable consumer believes that kombucha should contain live organisms is a question of fact. Cohen v. East West Tea Co. LLC, No. 17-2339 (S.D. Cal., entered August 2, 2018). The plaintiff alleged that East West Tea falsely labels and advertises its product as kombucha because it purportedly contains no “live organisms." The court found that the parties' definitions of “kombucha” differ and that a reasonable consumer may or may not expect to find live organisms in kombucha. Whether a practice is deceptive is not a matter to be resolved by a motion to dismiss, the court held, noting “mixed case law on whether ambiguity regarding the definition of a word merits a motion to dismiss.”
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The U.K. Advertising Standards Authority (ASA) has upheld the Obesity Health Alliance's complaints against advertisements for Kellogg Coco Pops Granola and a KFC milkshake. The organization asserted that both companies targeted ads for a product high in fat, salt or sugar (HFSS) to an audience under 16. The ad for Kellogg's Coco Pops Granola ran during a children's television show. Kellogg asserted that its granola is not an HFSS product, which ASA confirmed. "However, Coco Pops was a well-established brand, and Coco the Monkey, who was used to advertise all the products in the range, was also well-established as an equity brand character," ASA held. "We considered that many adults and children were likely to very strongly associate the Coco Pops brand and Coco the Monkey primarily with Coco Pops original cereal. At the time the ad was seen by the complainant Coco Pops original cereal was an HFSS product…
In collaboration with EUROPOL, Spain's environmental protection service has seized 45 tons of tuna illegally treated with color-enhancing substances. The tuna was frozen and acceptable for canned use, but four individuals were recoloring the fish and selling it as fresh, according to the investigators. The alleged perpetrators face up to four years in prison for "endangering public health."
Leaf Brands, which manufactures and sells Hydrox cookies, has reportedly filed a complaint with the Federal Trade Commission (FTC) alleging anti-competitive practices by Mondelez, which produces Oreos. In a social media post, Leaf Brands alleges that Mondelez has been "undertaking a national program to damage our brand and stop us from competing," including "trying to make it hard to find our cookies in stores nationally, in hopes of lowering sales volume and having us discontinued." Leaf Brands alleges that when Mondelez employees stock grocery stores shelves, they move Hydrox cookies to less noticeable areas on the shelf. "We hope the Federal Trade Commission will start the investigation very soon," the post states. "We understand there is already case law on this issue and we hope to utilize it in our case against Mondelez."
Nielsen has announced the results of a survey of U.K. consumers comparing opinions about sugar-sweetened beverages (SSBs) before and after the country's SSB tax took effect in April 2018, finding "minimal impact on consumer behaviour." The survey reportedly found that 62 percent of consumers "claim to have not changed their consumption behaviour in any way post-sugar tax, and only one fifth are checking sugar content on packages more frequently since the tax has come into effect." Further, 11 percent of consumers indicated that they would stop drinking SSBs before the tax took effect, but that number has dropped to one percent. "The number of people who said they would continue to buy sugary soft drinks also, surprisingly, grew post-tax, increasing from 31% in February to 44% in June," Nielsen's press release states.
The New York Times has published an article exploring the use of the term "organic" to describe food sold in restaurants, which are not required to undergo the same certification process as farms and food companies. The U.S. Department of Agriculture does not certify restaurants and does not plan to change that policy, an agency spokesperson reportedly told the Times. Restaurants that claim to be organic can be certified by third-party organizations, but certification can require "meticulous record keeping, extensive staff training on organic rules, fees in the thousands of dollars and lengthy inspections that involve scrutiny of everything from produce invoices to cleaning materials."
The Center for Food Safety and the Center for Environmental Health have filed a lawsuit alleging that the U.S. Department of Agriculture (USDA) failed to comply with mandatory deadlines established by the 2016 Federal Bioengineered Food Disclosure Standards Act, which would require labeling of foods that contain genetically modified organisms (GMOs). Ctr. for Food Safety v. Perdue, No. 18-4633 (N.D. Cal., filed August 1, 2018). The act's statutory deadline for the completion of final regulations implementing the statute and establishing the national disclosure standard was July 29, 2018. The complaint alleges that “[t]he statute preempted state laws requiring [genetic engineering (GE)] labeling, but until USDA issues the regulations, the statute is an empty vessel: there can be no federally required disclosures.” “Due to the lack of mandatory labeling, many American consumers are under an incorrect assumption as to whether the food they purchase is produced with GE,” the plaintiffs allege.…
The Eleventh Circuit has reversed the dismissal of a lawsuit against Dunkin’ Donuts LLC, ruling that a blind plaintiff who alleged the company’s website was not compatible with screen-reading software showed a plausible claim for relief under the Americans with Disabilities Act (ADA). Haynes v. Dunkin’ Donuts LLC, No. 18-10373 (11th Cir., entered July 31, 2018). The Southern District of Florida previously dismissed the complaint, reasoning that the plaintiff had "failed to allege a nexus between the barriers to access that he faced on the website and his inability to access goods and services at Dunkin’ Donuts’ physical store." The appellate panel found that “the prohibition on discrimination is not limited to tangible barriers that disabled persons face but can extend to intangible barriers as well. ... It appears that the website is a service that facilitates the use of Dunkin’ Donuts’ shops, which are places of public accommodation. And…
A New York federal court has dismissed a putative slack-fill class action against Tootsie Roll Industries, finding that the packaging of Junior Mints contains sufficient information for consumers to determine its volume and that “[t]he law simply does not provide the level of coddling plaintiffs seek. ... The court declines to enshrine into the law an embarrassing level of mathematical illiteracy." Daniel v. Tootsie Roll Industries LLC, No. 17-7541 (S.D.N.Y., entered August 1, 2018). The court found that “consumers can easily calculate the number of candies contained in the Product boxes simply by multiplying the serving size by the number of servings in each box, information displayed in the nutritional facts section on the back of each box.” In addition, the court rejected arguments that consumers depend on the size of the candies as shown on the package. Moreover, the court found that the plaintiffs did not show that the…
The Trademark Trial and Appeal Board (TTAB) has dismissed The Wonderful Co.'s opposition to Comrade Brewing Co.'s application to register "Superpower" as a mark used in relation to beer. Wonderful Co. v. Comrade Brewing Co., No. 91230877 (T.T.A.B., entered August 2, 2018). The Wonderful Co. uses its mark "Antioxidant Superpower" to describe its POM pomegranate juice, which it alleged will be sold in the same aisle as beer in some stores. TTAB was unpersuaded, finding that consumers are not likely to view fruit juices and beer as produced by a common source under one brand's mark. TTAB also found the term "antioxidant superpower" to be "somewhat suggestive of the identified goods, and thus conceptually is somewhat weaker than an arbitrary mark."
