Category Archives Litigation

Snyder's-Lance Inc. has voluntarily dismissed a lawsuit seeking to appeal a decision holding that it could not trademark "Pretzel Crisps" as a name for its product, which Frito-Lay North America Inc. had challenged before the Trademark Trial and Appeal Board. Snyder's-Lance Inc. v. Frito-Lay N. Am. Inc., No. 21-1758 (4th Cir., filed August 31, 2021). The dismissal concludes years-long litigation disputing whether the "Pretzel Crisps" mark was too generic to be registered. An appeal of a lower court's ruling that the term is generic had been pending until Snyder's-Lance's voluntary dismissal.

The European Court of Justice has ruled that alga Lithothamnium calcareum cannot be used in the production of food labeled as organic for the purposes of adding calcium. Natumi GmbH v. Land Nordrhein-Westfalen, No. C‑815/19 (E.C.J., entered April 29, 2021). Natumi GmbH manufactured a drink labeled as organic that is marketed as calcium-rich because of its red algae content, but the German state North Rhine-Westfalia imposed a fine on the company for adding non-edible algae to its products. "Natumi acknowledges that, since the use of calcium carbonate is prohibited for the calcium enrichment of organic products, many producers of soya-, rice- and cereal-based organic drinks add the Lithothamnium calcareum alga to them because it is naturally high in calcium. In addition, Natumi argues that that alga is a natural alternative to calcium and that its use for enriching organic food should be permitted," the court found. However, it stated, allowing the…

According to a putative class action complaint, Kodiak Cakes LLC and Baker Mills Inc. deliberately mislead consumers by labeling Kodiak Cakes pancake and waffle mixes as containing 14 grams of protein despite allegedly containing only 11.5 grams. Hinkley v. Baker Mills Inc., No. 21-221 (D. Utah, filed April 13, 2021). "Consumers are increasingly health conscious and, as a result, many consumers seek foods high in protein to support weight loss, exercise, and general fitness, among other perceived health benefits of protein consumption," the plaintiffs argue. "To capitalize on this trend, Defendants prominently label their Kodiak Cakes products as providing specific amounts of protein per serving depending on the product, such as '14g protein' on the label of its Buttermilk Flapjack and Waffle Mix. Consumers, in turn, reasonably expect that each product will provide the actual amount of protein per serving that the label claims it will. In truth, however, Defendants’…

Tootsie Roll Industries has filed a trademark infringement action alleging Lafayette Bay Products, LLC, doing business as Spunky Pup, illegally copied its trade dress by manufacturing and selling a product called "Tootsie Pups." Tootsie Roll Indus. LLC v. Lafayette Bay Prods. LLC, No. 21-1997 (N.D. Ill., E. Div., filed April 14, 2021). Tootsie Roll Industries alleges that the dog treats sold as Tootsie Pups are shaped and colored like Tootsie Roll Midgees, "being brown and cylindrically shaped with a length approximately two times its diameter." Further, the treats are sold in packages that allegedly echo the Tootsie Roll Midgees packaging, including "prominent wording in the same position and the same white font, the large, dark brown middle panel, and the bright stripes on each side of the panel." Tootsie Roll Industries also notes that it has licensed its marks for sale on pet items, allegedly resulting in a likelihood of…

A consumer has alleged that The Kroger Co. misleads with its packaging for sparkling water products sold with flavors such as "Black Cherry," "White Grape" and "Kiwi Strawberry" because the waters are purportedly flavored artificially rather than with extracts of the fruits. Gammino v. Kroger Co., No. 21-2933 (N.D. Cal., filed April 22, 2021). The complaint asserts that Kroger's "packaging, labeling, and advertising scheme for these Products is intended to give consumers the impression that they are buying a premium, all-natural product instead of a product that is artificially flavored." The plaintiff asserts that the flavoring in the beverages comes from malic acid, "a synthetic chemical manufactured in a petrochemical factory from petroleum feedstocks." The complaint lists several causes of action, including alleged violations of Ohio and California's consumer-protection statutes as well as fraud by omission, negligent misrepresentation and money had and received.

A plaintiff has filed a putative class action alleging that Whole Foods Market Group Inc. misleads consumers by selling sparkling mineral water in a lemon raspberry flavor without an "appreciable amount" of lemons and raspberries. Kelly v. Whole Foods Mkt. Grp. Inc., No. 21-3124 (S.D.N.Y., filed April 11, 2021). The label of the water contains images of lemons and raspberries, the complaint asserts, and consumers "will expect the presence of a non-de minimis amount of lemon and raspberry ingredients, based on the pictures of these fruits." The plaintiff argues that the ingredient list, which shows the contents as "carbonated mineral water, organic natural flavors (raspberry, lemon)," fails to inform consumers the flavoring "mainly consists of flavors from fruits other than lemons and raspberries." "Because lemon oil and raspberry oil or raspberry extract are not separately identified ingredients, it means that any real lemon or raspberry flavoring is at most a de minimis…

Two consumers allege that Ancient Brands' Ancient Nutrition Bone Broth Protein products are marketed as beneficial to health but contain protein that is "largely indigestible to the human body and provides little to no actual benefit to consumers." Bush v. Ancient Brands LLC, No. 21-0390 (N.D.N.Y., filed April 5, 2021). The complaint asserts that Ancient Brands fails to calculate the protein content as a percentage of daily value or as calculated by the Protein Digestibility Amino Acid Corrected Score, allegedly violating state and federal regulations. The plaintiffs detail how protein content is calculated, asserting that the percentage daily value listed on the packaging provides consumers information on the quality of protein and is required on product packaging that contains a nutrient content claim for protein. The plaintiffs allege violations of New York and California consumer-protection statutes as well as fraudulent concealment, unjust enrichment and breach of express warranty.

The U.S. Court of Appeals for the Fifth Circuit has ruled that H.J. Heinz Co. Brands did not violate the Metchup trademark when it introduced a poll letting consumers choose the name of its mayonnaise-ketchup blend, which ultimately chose "Mayochup" as the winner but included "Metchup" as an option. Perry v. H.J. Heinz Co. Brands LLC, No. 20-30418 (5th Cir., entered April 12, 2021). The district court found no likelihood of confusion between Heinz' "convenient, yet perhaps gratuitous, mixture" and the plaintiff's product, which has sold about $170 worth of either mayonnaise-ketchup or mustard-ketchup blends "from the lobby of a nine-room motel adjacent to his used-car dealership in Lacombe, Louisiana." The appeals court found that the Metchup name was one of more than 90 suggestions submitted by consumers in Heinz' poll on what the mayonnaise-ketchup combination should be called, which also included, as the court noted, "Saucy McSauceface, an apparent…

The National Organic Program can continue to include foods grown through hydroponics following a ruling from a California federal court holding that the U.S. Department of Agriculture (USDA) acted reasonably in concluding that the statutory scheme does not exclude hydroponics. Ctr. for Food Safety v. Perdue, No. 20-1537 (N.D. Cal., entered March 18, 2021). The Center for Food Safety (CFS) had sought to limit foods labeled as "organic" to only foods grown in soil, but the USDA denied the advocacy group's petition. "The petition denial should not be disturbed because USDA reasonably defends its determination that [the Organic Foods Production Act (OFPA)] does not compel the prohibition of hydroponics," the court held. "USDA’s ongoing certification of hydroponic systems that comply with all applicable regulations is firmly planted in OFPA. It therefore provides the 'reasonable explanation' required on review, so its denial will not be vacated."

A California federal court has ruled that the state "has not shown that the cancer warnings it requires are purely factual and uncontroversial" or "that Proposition 65 imposes no undue burden on those who would provide a more carefully worded warning." Cal. Chamber of Com. v. Becerra, No. 19-2019 (E.D. Cal., entered March 29, 2021). The California Chamber of Commerce filed a lawsuit seeking to enjoin new lawsuits from enforcing the Safe Drinking Water and Toxic Enforcement Act (Prop. 65) against foods that contain acrylamide. The court considered evidence on the toxicity of acrylamide, finding that "some evidence does support such an inference" that eating food with acrylamide will increase a person's risk of cancer, but "dozens of epidemiological studies have failed to tie human cancer to a diet of food containing acrylamide. Nor have public health authorities advised people to eliminate acrylamide from their diets. They have at most…

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