Category Archives Litigation

An Illinois federal court has granted Kraft Heinz Foods Co.'s motion to dismiss a lawsuit alleging the labeling noting the inclusion of mozzarella cheese and tomato sauce in Bagel Bites is misleading. Jackson v. Kraft Heinz Foods Co., No. 21-5219 (N.D. Ill., E. Div., entered August 3, 2022). "Central to all of Plaintiff s claims is the notion that the Product's label misleads consumers by representing that the Product contains ‘mozzarella cheese. REAL cheese,' and 'tomato sauce,' but omitting that it contains additives," the court found. "However, a product that says it contains mozzarella cheese and tomato sauce when the Product does, in fact, contain mozzarella cheese and tomato sauce is not misleading to the reasonable consumer simply because its label does not list its additives." The court also noted that the standard of a "reasonable consumer" can vary according to the product at issue. "[W]hile Plaintiff contends reasonable consumers do…

A consumer has filed a putative class action alleging Popeyes Louisiana Kitchen Inc. misled her into believing that the restaurant's chicken tenders were composed of chicken tenderloins. Sanders v. Popeyes Louisiana Kitchen Inc., No. 22-4477 (E.D.N.Y., filed July 29, 2022). "Traditionally, chicken tenders are made from chicken tenderloins," the complaint asserts. "Chicken tenderloins are the small strips of meat that are loosely attached to the underside of each breast, along the breastbone. As a result, chicken tenderloins are more tender than regular chicken breast, and hence, the name chicken tender. Chicken tenderloins are also juicier, making them more desirable for consumption. They are significantly smaller than the remainder of the chicken breast, also making them more expensive than the rest of the chicken breast." The chicken tenders at Popeyes, the plaintiff argues, are instead made from the remainder of the chicken breast. The plaintiff asserts that Popeyes' competitors are accurate in their…

The National Pork Producers Council and a group of organizations representing restaurants and hotels in New England have filed a lawsuit aiming to enjoin Massachusetts from enforcing a law set to take effect August 15, 2022, banning the sale of pork produced from animals "that the business owner or operator knows or should know is the meat of a covered animal that was confined in a cruel manner, or is the meat of the immediate offspring of a covered animal that was confined in a cruel manner." Mass. Restaurant Ass'n v. Healey, No. 22-11245 (D. Mass., filed August 3, 2022). The complaint urges the court to prevent enforcement until after the U.S. Supreme Court has reviewed a Commerce Clause challenge to a "materially identical California statute." The Massachusetts Pork Rule and California's Proposition 12 ban "the sale of pork born to a sow confined in a way that prevents her…

The U.S. Court of Appeals for the D.C. Circuit has upheld a lower court's ruling finding a challenge to the U.S. Food and Drug Administration's (FDA's) prohibition on interstate sales of unpasteurized butter to be meritless. McAfee v. FDA, No. 21-5170 (D.C. Cir., entered June 10, 2022). A lower court previously dismissed a challenge filed by a dairy farmer who argued that FDA's definition of butter does not require pasteurization and thus the rule banning the sale of unpasteurized butter under the Public Health Service Act (PHSA) made an "unlawful change to butter's statutory definition." FDA had denied the farmer's 2016 petition to exclude butter from the rule requiring pasteurization of milk products, finding that "the ban on raw butter helps prevent the spread of communicable diseases" and that "manufacturing controls intended to ensure safety [] may exist independent of any standards of identity." The D.C. Circuit was unpersuaded, agreeing…

Two consumers have filed a putative class action alleging that Barilla America Inc. markets its pasta to incorrectly imply that the products are made in Italy. Sinatro v. Barilla Am. Inc., No. 22-3460 (N.D. Cal., filed June 11, 2022). The complaint asserts that consumers seek "authentic Italian-made pastas" because they "hold a certain prestige and [are] generally viewed as a higher quality product." The plaintiffs argue that Barilla's statement "Italy's #1 Brand of Pasta," which appears prominently on its product packaging, leads consumers to believe that the products are made in Italy rather than New York and Iowa. Further, the company's website describes it as "an Italian family-owned food company" and emphasizes that "Italians know the familiar Blue Box means quality, perfectly al dente pastas every time. That's why Barilla has been an Italian favorite for over 140 years, and continues to be the #1 pasta in Italy today." For alleged…

A consumer has filed a putative class action alleging Danone North America Public Benefit Corp. misleads consumers about the nature of its International Delight coffee creamers by labeling the products as creamers rather than non-dairy creamers. English v. Danone N. Am. Pub. Benefit Corp., No. 22-5105 (S.D.N.Y., filed June 17, 2022). The plaintiff argues that International Delight creamer "lacks cream or dairy ingredients beyond a de minimis amount of sodium caseinate" and instead "substitutes water and palm oil, the first and third ingredients, to reduce costs." The complaint notes that consumers "value cream from dairy ingredients for its nutritive purposes," and the plaintiff alleges she would not have purchased the product if she had not been misled by the packaging implying the presence of dairy ingredients. For alleged violations of New York consumer-protection statutes, fraud, unjust enrichment and breach of express warranty, the plaintiff seeks class certification, restitution, damages and attorney's fees.

Clif Bar & Co. has submitted a settlement agreement to a California federal court seeking approval to settle a class action alleging that Clif Bars are misleadingly marketed as healthy despite containing levels of sugar beyond what consumers would expect healthy foods to contain. Milan v. Clif Bar & Co., No. 18-2354 (N.D. Cal., filed June 23, 2022). In addition to establishing a $10.5-million fund, Clif will "make significant changes to the labeling and packaging of its original Clif Bars and Kid ZBars," according to the agreement. The changes include refraining from use of "nutrition," "nutritious" and "nourishing kids in motion" on Clif Bar packaging "so long as 10% or more of [a bar's] calories come from added sugars." The class includes customers who purchased Clif Bars between April 19, 2014, and June 23, 2022, and claimants will be divided into quintiles with varying levels of awards depending on degrees of…

An Illinois federal court has granted Kellogg Sales Co.'s motion to dismiss a consumer's putative class action complaint alleging that Frosted Chocolate Fudge Pop-Tarts lacked the milkfat (milk and butter) necessary for a product to be described as fudge. Reinitz v. Kellogg Sales Co., No. 21-1239 (C.D. Ill., entered June 2, 2022). As evidence for the claim, the plaintiff provided a book by Molly Mills, who was described as "one of today's leading authorities on fudge"; Kellogg argued that Mills' book, which contains 40 recipes for fudge, included multiple recipes that do not contain milkfat. "Plaintiff fails to support that the average consumer would believe a fudge product must, of necessity, contain milkfat," the court found. Comparing a similar case dismissed when the plaintiff could not show that a reasonable consumer would be misled by the strawberry designation on the Pop-Tart label, the court dismissed the complaint but granted leave to…

Beyond Meat Inc., producer of plant-based meat substitute products, has been hit with two lawsuits in the same week—one filed by a competitor and another filed by a group of consumers. Roberts v. Beyond Meat Inc., No. 22-2861 (N.D. Ill., E. Div., filed May 31, 2022); Don Lee Farms v. Beyond Meat Inc., No. 22-3751 (C.D. Cal., filed June 2, 2022). The complaints make similar allegations, asserting that Beyond Meat "miscalculates and overstates the Products' protein content" as well as the quality of the protein. "Beyond Meat goes the extra mile to represent that the Products are the 'future of protein' and claims that eating the Products allows consumers to get high-quality protein in their diet while simultaneously helping the environment," the consumer complaint argues. Both complaints describe the process of testing Beyond Meat's products to ascertain the protein content of the products, allegedly finding that most of the products contained…

Two consumers have filed a putative class action alleging Gorton's Inc. has misled consumers about the environmental impact of the fish it sells. Spindel v. Gorton's Inc., No. 22-10599 (D. Mass., filed April 21, 2022). "Gorton's claims about sustainability lead consumers to believe that the Products are 'sustainably sourced.' Consumer research demonstrates that claims like Gorton's suggest to consumers that the tilapia is sustainably sourced in accordance with high environmental and animal welfare standards," the complaint argues. "In reality, the Products are made from tilapia who are industrially farmed using unsustainable practices that are environmentally destructive and inhumane." The plaintiffs argue that Gorton's sources its tilapia from farms in China using pond aquaculture, "a particularly risky form of fish farming because, among other problems, this method is typically done in regions where tilapia ponds are 'vulnerable to river flooding events,'" creating the risk of releasing the "highly invasive" tilapia into local…

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