A Kansas resident has filed a putative class action in state court against POM Wonderful, LLC, alleging that the company’s claims that its pomegranate products have special health benefits are false, deceptive and misleading. Haynes v. POM Wonderful, LLC, No. CV08720 (Kan. Dist. Ct., Johnson Cty., filed September 29, 2010). Seeking to certify a statewide class of consumers, the plaintiff refers to actions that advertising watchdogs and government agencies have taken against the company, including the recent Federal Trade Commission administrative complaint, after purportedly determining that the company does not have a sufficient scientific basis to make health-related representations about its products. The plaintiff alleges violations of the Kansas Consumer Protection Act and unjust enrichment and seeks damages in excess of $25,000, attorney’s fees and costs.
Category Archives 10th Circuit
Mini’s Cupcakes, Inc. has sued LuAnn’s Cupcakes, Inc. in a federal court in Utah, claiming the infringement of trade dress rights by LuAnn’s sale of cupcakes substantially the same in appearance as Mini’s gourmet “Breakfast at Tiffany’s” cupcake. Mini’s Cupcakes, Inc. v. LuAnn’s Cupcakes, Inc., No. 10-457 (D. Utah, filed May 14, 2010). The distinctive design allegedly features “vanilla cake, blue cream cheese frosting and silver and white gems. According to Mini’s, LuAnn’s “Tiffany Jewel” cupcakes are so similar that the “ordinary observer” will be confused about the origin of LuAnn’s product. The plaintiff alleges trade dress infringement, unfair competition, false designation of origin, passing off, and false advertising under federal law; common law unfair competition, misappropriation, and trade dress infringement under state law; and vicarious trade dress infringement against a supermarket that distributes the alleged infringing cupcakes. Mini’s seeks injunctive relief, an accounting of profits, compensatory damages, attorney’s fees, and…
A federal court in Colorado has dismissed as premature a medical provider’s challenge to Food and Drug Administration (FDA) regulations potentially applicable to its medical procedures because the agency had issued only a warning letter against it, and warning letters are not final. Regenerative Sciences, Inc. v. FDA, No. 09-411 (D. Colo., decided March 26, 2010). The court’s analysis of the non-final nature of FDA warning letters may have some relevance in those consumer fraud actions against food makers citing such letters to establish a fact or using them as definitive evidence of wrongdoing or a violation of the law. The agency itself acknowledged that its warning letters do not constitute a determination that a particular statute or regulation applies to the specific circumstances that led FDA to issue the letters, noting “this is a factual issue that cannot be resolved until FDA brings an action against” the letter recipient.
A federal court in Kansas has dismissed a putative class action filed against Applebee’s International, Inc. and Weight Watchers International, Inc., finding that the claims raised under the Racketeer Influenced and Corrupt Organizations Act (RICO) were not sufficiently alleged. Shepard v. Applebee’s Int’l, Inc., No. 08-2416 (D. Kan., decided April 7, 2010). Details about the litigation, filed by a different named plaintiff, appear in issue 274 of this Update. The complaint alleged that the companies misrepresent the fat and calorie information in the dishes on the restaurateur’s “healthy” Weight Watchers® menu. The court had previously dismissed the plaintiffs’ state law claims as preempted by the Nutrition Labeling and Education Act, and sustained in part a motion to dismiss their RICO claims. Thereafter, defendants filed a motion for judgment on the pleadings as to the remaining RICO claim, arguing that the plaintiffs failed to allege “racketeering activity” because they did not…
According to a news source, a Denver man who alleged that his habit of consuming two bags of microwave popcorn every day caused his bronchiolitis obliterans, a debilitating lung condition purportedly associated with exposure to the butter flavoring diacetyl, has settled his claims against a flavoring manufacturer. Watson v. Dillon Cos., Inc., (D. Colo.) One of three diacetyl lawsuits brought by consumers in 2008, the claims of Wayne Watson were filed on his behalf by an Independence, Missouri, law firm that has obtained a number of settlements for workers with “popcorn lung” purportedly caused by occupational exposures to diacetyl. Details about Watson’s case appear in issue 244 of this Update. No additional information about the settlement has apparently been made available. See Findlaw.com, December 15, 2009.
The Tenth Circuit Court of Appeals has affirmed a lower court’s decision not to enjoin Tyson Foods, Inc. from using poultry litter as fertilizer. Oklahoma v. Tyson Foods, Inc., No. 08-5154 (10th Cir., decided May 13, 2009). Oklahoma’s attorney general sought a preliminary injunction to halt the practice, arguing that poultry litter contains E. coli, Salmonella and Campylobacter and that its use in the Illinois River Watershed in Arkansas and Oklahoma caused fecal bacterial contamination of the watershed’s waterways, which are popular for water recreation and supply drinking water for local residents. Tyson responded that the bacteria come from multiple sources including wildlife, various farm animals and humans. The company also noted that the way its farmers treat poultry litter kills any bacteria and that the watershed’s bacteria levels “do not correlate to poultry farming or litter application, but rather correspond to areas of cattle farming and human activity.” The…
Aurora Dairy Corp., which is defending multidistrict litigation involving putative class claims that it sold its products as “organic” without following national organic program standards, has sued one of its insurance carriers in federal court seeking a declaration that the insurer has wrongly failed to provide defense coverage. Aurora Dairy Corp. v. Nationwide Agribusiness Ins. Co., No. 09-00346 (D. Colo., filed February 19, 2009). According to the complaint, “Aurora has been named in thirteen consumer class actions filed in the courts of six different states.” The claimants in those lawsuits allege a variety of causes of action including “that the milk provided by Aurora that they purchased allegedly exposed them, their families and their friends to pesticides, hormones, antibodies, and other chemicals and/or has generally caused them injury or damage.” Additional details about the underlying lawsuits appear in issues 251, 279 and 286 of this Update. Aurora claims that it has…
