Category Archives U.S. Circuit Courts

Washington, D.C., brewery Atlas Brew Works has filed a First Amendment lawsuit and motion for preliminary injunction alleging that the federal government's partial shutdown has violated its right to speak because the Alcohol and Tobacco Tax and Trade Bureau has stopped issuing label approvals, causing beer production to halt. Atlas Brew Works v. Whitaker, No. 19-0079 (D.D.C., filed January 15, 2019). The complaint asserts that Atlas "sits on 40 barrels of seasonal, perishable beer—an apricot-infused India pale ale known as The Precious One—that it cannot lawfully label for interstate sale in kegs, as scheduled, for lack of a [Certificate of Label Approval (COLA)]." The brewery alleges that its speech—through labels—is essential to its business because it "cannot sell, and no one will purchase, random unidentified liquids." Atlas argues that its First Amendment rights have been violated because "it cannot be denied the right to speak for lack of meeting an…

The owner of a trademark on "Metchup" has filed an infringement suit alleging that H.J. Heinz Co.'s "Mayochup" is "confusingly similar" to his protected trademark. Perry v. H.J. Heinz Co. Brands, No. 19-0280 (E.D. La., filed January 14, 2019). The plaintiff has purportedly used the "Metchup" mark to sell his ketchup-mayonnaise and mustard-mayonnaise combinations since 2010, and he asserts that Kraft Heinz Co. has infringed on his trademark by using a mark that "bears a particularly strong phonetic similarity to Plaintiff's mark. Depending on pronunciation and/or regional dialect, the marks are virtually indistinguishable from one another." The complaint further cites Google search results for "metchup," which direct searchers to the Heinz website, as evidence that consumers are confusing the two marks. The plaintiff seeks an injunction, destruction of infringing materials, damages and attorney's fees for allegations of counterfeiting, trademark infringement, false designation of origin and violations of Louisiana's business codes.

A plaintiff has alleged that Food for Life Baking Co. Inc. misled consumers by advertising its cereal product, Ezekiel 4:9, as nutritionally superior to comparable cereal products because it is made with sprouted grains. Elliott v. Food for Life Baking Co. Inc., No. 19-0249 (E.D.N.Y., filed January 13, 2019). The complaint asserts that Ezekiel 4:9's labeling makes nutrient claims comparing its sprouted grains to non-sprouted grains without including "any reference food upon which the relative claims are based, which is misleading because there is no way to accurately evaluate the statements regarding the higher nutritional values of sprouted grains compared to non-sprouted grains." In addition, the complaint contests Ezekiel 4:9's assertion that the grains are a "living food" because "by the time the sprouted grain is dried, grounded into flour and heated, any nutritional benefits which may have existed have been extinguished." For allegations of fraud, negligent misrepresentation, unjust enrichment,…

A consumer has filed a putative class action alleging that Tootsie Roll Industries Inc. sold Tootsie Rolls and Tootsie Pops with partially hydrogenated oil (PHO) in 2016, after the U.S. Food and Drug Administration issued a rule declaring PHO unsafe for use in food. Beasley v. Tootsie Roll Indus. Inc., No. 18-7724 (N.D. Cal., filed December 26, 2018). The complaint focuses on the harms of PHO consumption, including elevated risks of diabetes, cancer, organ damage and cognitive decline. The plaintiff asserts that she "suffered physical injury when she repeatedly consumed the Tootsie Products, because consuming artificial trans fat in any quantity, including the quantity she actually consumed, inflames and damages vital organs and increases the risk of heart disease, diabetes, cancer, and death." For an alleged violation of California consumer-protection law and breach of implied warranty of merchantability, the plaintiff seeks class certification, restitution and attorney's fees.

A California federal court has granted preliminary approval to the proposed settlement of a lawsuit alleging Keurig Dr Pepper Inc. and Canada Dry Mott's Inc. misled consumers into believing that Canada Dry Ginger Ale was "Made from Real Ginger." Fitzhenry-Russell v. Keurig Dr Pepper Inc., No. 17-0564 (N.D. Cal., entered January 10, 2019). Under the settlement agreement, the company will pay $0.40 per product unit to class members, with a maximum of $40 for those with proof of purchase and $5.20 for those without. The plaintiff's attorneys may apply for up to $2.25 million in attorney's fees, and the class representative will receive $5,000.

Following a California settlement, Amazon has reportedly agreed to stop selling foie gras produced from force-fed ducks and geese. The settlement between the company and Los Angeles County stems from a lawsuit alleging that Amazon violated a 2004 California law banning the sale of the products. Under the agreement, Amazon will not sell—or allow its third-party sellers to offer for sale—force-fed foie gras in California for five years. A lawsuit seeking to invalidate the ban awaits a ruling on certiorari from the U.S. Supreme Court after the Ninth Circuit found that the statute was not preempted by the Poultry Products Inspection Act.

The Second Circuit has reversed a lower court’s dismissal of a lawsuit alleging that Kellogg Co. misleads consumers by marketing its Cheez-Its as “made with whole grain.” Mantikas v. Kellogg Co., No. 17-2011 (2nd Cir., entered December 11, 2018). The lower court had agreed with Kellogg that the “made with whole grain” label was factually accurate and would not mislead reasonable consumers, and it dismissed the complaint for failure to state a claim. “Although the district court is correct that an allegedly misleading statement must be viewed ‘in light of its context on the product label or advertisement as a whole,’ [] the court misapplied that principle to Plaintiffs’ claims in this case,” the court held. “Plaintiffs’ core allegation is that the statements ‘Whole Grain’ and ‘Made With Whole Grain’ are misleading because they communicate to the reasonable consumer that the grain in the product is predominantly, if not entirely,…

An Illinois federal court has dismissed a putative class action alleging that Fannie May Confections Brands Inc. underfills its Mint Meltaways and Pixies candy boxes. Benson v. Fannie May Confections Brands Inc., No. 17-3519 (N.D. Ill., E. Div., entered December 10, 2018). The court previously dismissed the plaintiffs’ complaint on the grounds that it provided “bare-bones” factual allegations and failed to allege a claim that would not be preempted by the federal Food, Drug and Cosmetic Act. The court dismissed the plaintiffs’ argument that Fannie May’s 14-ounce boxes contained less slack fill than its seven-ounce boxes, the subject of the complaint. “This type of comparison tells the Court nothing about the slack-fill in the containers in question,” the court found. “The fact that a different container is filled to a different level is not only unsurprising, it is what one would expect.” The court compared the plaintiffs’ allegations with those…

A California federal court has partially certified a class of consumers that alleges Ocean Spray Cranberries Inc. misled them into believing that their products were free of artificial flavoring but contained malic acid. Hilsley v. Ocean Spray Cranberries Inc., No. 17-2335 (S.D. Cal., entered November 29, 2018). The court first found that the proposed class met the requirements of typicality, numerosity, commonality and adequacy of the class representative before focusing on the predominance issue for the breach of express warranty and breach of implied warranty allegations. The plaintiff asserted that damages for those allegations could be determined with a survey that apparently identified the price premium that consumers would pay based on the "no artificial flavors" representation. Ocean Spray argued that the "proposed damages model is fatally flawed" because of the use of "diverse comparative products, retailing concepts, juice percentages and an irrelevant specific time period," and the court agreed,…

A California federal court has denied a motion to dismiss a lawsuit alleging that Sanderson Farms Inc. misleads consumers about the presence of antibiotics in its chickens. Friends of the Earth v. Sanderson Farms Inc., No. 17-3592 (N.D. Cal., entered December 3, 2018). The plaintiffs—several advocacy groups—assert that Sanderson's marketing misleads consumers into believing that its chickens are raised without antibiotics, while Sanderson argues that its labeling, advertisements and website communicate to consumers that the chicken products they purchase do not contain antibiotics. "Sanderson argues its infographic on its '100% Natural' webpage contains only true statements: it shows what ingredients are not added to the chicken and says nothing about antibiotic use or nonuse," the court stated. "Defendant appears to make an expressio unius argument: that because antibiotics are not included in the list of excluded artificial ingredients, a reasonable consumer could not conclude that antibiotics are also excluded. As…

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