The U.S. Court of Appeals for the Eleventh Circuit has overturned a Florida court's summary judgment against Ocheesee Creamery, finding that the company can sell its milk product as skim milk despite its refusal to follow a Florida law requiring skim milk to be fortified with vitamin A. Ocheesee Creamery LLC v. Putnam, No. 16-12049 (11th Cir., order entered March 20, 2017). Additional details on the lower court's rulings appear in Issues 555 and 599 of this Update. Florida initially told Ocheesee that it could sell its skim milk as "imitation skim milk," but Ocheesee objected to the description of its natural, unfortified milk as "imitation." Ocheesee rejected other suggested labels as well, including "Non-Grade 'A' Milk Product, Natural Milk Vitamins Removed," then filed a lawsuit asserting a First Amendment right to describe its product as "skim milk." The lower court granted summary judgment in favor of Florida, finding that…
Category Archives 11th Circuit
Christian Rivas, owner of Oasis Brands Inc., has been sentenced to 15 months in prison for two charges that he sold cheese contaminated with Listeria monocytogenes after the U.S. Food and Drug Administration (FDA) instructed the company to stop distribution until it remedied its practices. FDA inspected Oasis in August 2014, found several violations and required Oasis to halt distribution of any products until they were cleared by laboratory testing. Rivas continued distributing Oasis' cheese, which then failed a random Listeria test at a Virginia grocery store. In addition to his 15 months in prison, Rivas is subject to one year of supervised release. See South Florida Business Journal, November 16, 2016. Issue 623
A consumer has filed a proposed class action against Hormel Foods Corp. alleging the company misrepresents its meat products as natural and free of preservatives despite containing synthetic or genetically modified ingredients, including cultured celery powder, baking powder and maltodextrin. Phelps v. Hormel Foods Corp., No. 16-62411 (S.D. Fla., Ft. Lauderdale Div., filed October 11, 2016). The lawsuit, focused on Hormel’s Natural Choice® line of products, echoes similar claims in a complaint filed by the Animal Legal Defense Fund in June 2016. Details on that complaint appear in Issue 610 of this Update. “The U.S. Department of Agriculture (‘USDA’) takes into account the level of processing in its policy on natural claims on food labeling,” the consumer complaint asserts. “The USDA allows such products to be labeled ‘natural’ when ‘(1) The product does not contain any artificial flavor or flavoring, coloring ingredient, or chemical preservative [], or any other artificial…
A Florida federal court has dismissed a putative class action against The Wendy’s Co. alleging the company failed to adequately secure its customers’ financial information but granted the plaintiff leave to amend. Torres v. Wendy’s Co., No. 16-0210 (M.D. Fla., order entered July 15, 2016). The court found that while the plaintiff’s financial information had been fraudulently used to complete two transactions, “other district courts have concluded that mere fraudulent charges on debit or credit cards do not rise to the level of actual identity theft sufficient to establish standing.” Further, because the charges were reimbursed by the plaintiff’s credit union, he had “not alleged any monetary harm stemming from the two fraudulent charges.” The plaintiff also argued that he and the putative class had standing because of the threat of future harm because they must monitor for future identity theft. The court distinguished the facts at issue from a similar…
Two consumers have filed a putative class action against Panera LLC involving the restaurant chain’s “2.0” ordering system using touchscreen kiosks and a “fast lane” pick-up shelf, which they allege fails to accommodate the visually impaired. Gomez v. Panera LLC, No. 16-21421 (S.D. Fla., filed April 20, 2016). The plaintiffs argue that they each visited a Florida location of Panera and found themselves “unable to enjoy the same ordering and dining experience as sighted patrons” because they were “denied the ability to independently select and purchase lunch.” The kiosks “were not designed and programmed to interface with commercially available screen reader software and further were not equipped with auxiliary aids (such as an audio interface system) for disabled individuals who are visually impaired,” the complaint alleges. The plaintiffs further argue that Panera’s website is unusable to them because it does not integrate with their screen reader programs. They seek orders…
A Florida federal court has denied Chipotle’s motion to dismiss a putative class action alleging the company misrepresents its food as free of genetically modified organisms (GMOs) despite selling meat produced from animals fed GMOs. Reilly v. Chipotle Mexican Grill, Inc., No. 15-23425 (S.D. Fla., order entered April 20, 2016). Chipotle argued that the plaintiff had no standing to sue because she did not specify which products she purchased; the court found she had sufficiently pleaded her claims to support standing for her consumer-protection claims, but not her request for an injunction. Chipotle also challenged the plaintiff’s understanding of “non-GMO” as “nonsensical,” but the “reasonableness of her definition, upon which her interpretation of Chipotle’s advertisements is based, is a question better decided upon examination of the evidence,” the court held. Accordingly, it granted Chipotle’s motion to dismiss the request for injunctive relief but denied it as to the rest of…
A putative class action against Melitta USA Inc. alleges the company’s coffee product packaging fails to distinguish between “natural and/or artificial flavor” per federal regulations. Decerbo v. Melitta USA Inc., No. 16-0850 (M.D. Fla., filed April 11, 2016). The plaintiff argues that under U.S. Food and Drug Administration rules, food manufacturers must “accurately identify or describe, in as simple and direct terms as possible, the basic nature of the food and its characterizing properties or ingredients,” including whether a characterizing flavor is natural or artificial. However, “‘Hazelnut Crème’ is not flavored with hazelnuts, there is no vanilla in ‘French Vanilla,’ and ‘Pumpkin Spice’ flavor contains neither nutmeg nor cinnamon, or pumpkin or any customary pumpkin spice either, as these Products’ labels would explicitly lead a consumer to conclude,” the complaint argues. The plaintiff further notes that other coffee-product manufacturers “have responsibly decided to correctly label their products,” purportedly giving the…
A Florida federal court has rejected a Florida dairy farmer’s challenge to the state’s standard of identity for skim milk, which dictates that its nutrient content must be the same as that of unfortified whole milk, requiring the addition of vitamin A after processing. Ocheesee Creamery v. Putnam, No. 14-0621 (N.D. Fla., Tallahassee Div., order entered March 30, 2016). The farmer’s company, Ocheesee Creamery, skimmed the cream from milk and sold the leftover product as “skim milk” without fortifying it with vitamin A. Florida inspectors told the dairy farmer she must adjust the nutrient level or label the milk “imitation,” and she filed a lawsuit challenging the rule. Additional details on the case appear in Issue 555 of this Update. The court found that the state standard of identity and its federal counterpart in the federal Food, Drug, and Cosmetic Act “easily pass muster” under the First Amendment test for…
A Georgia federal court has reportedly ruled that four former executives of Peanut Corp. will not be forced to pay restitution to the victims of a Salmonella outbreak linked to nine deaths and 714 illnesses. The executives—Stewart Parnell, Michael Parnell, Samuel Lightsey and Daniel Kilgore—are each serving federal prison terms for knowingly shipping Salmonella-tainted peanut butter and faking related lab-test results. The court reportedly found that the loss estimates provided by the prosecutors were invalid because they included unrecoverable costs, including attorney’s fees. Further, the victims received more than $12 million from Peanut Corp.’s insurer, and the punitive factor of restitution would be reduced because requiring payment “would ultimately be for naught or close-to-naught,” as the executives received long prison sentences. See Associated Press, April 7, 2016. Issue 599
A consumer has filed a putative class action against The Wendy’s Co. alleging a failure to sufficiently secure customer payment card data. Torres v. Wendy’s Co., No. 16-0210 (M.D. Fla., filed February 8, 2016). Wendy’s announced in late January 2016 that it had discovered in its processing systems a software program designed to steal credit and debit card information, several weeks after the plaintiff discovered that his debit card had been used in fraudulent purchases totaling almost $600. “Wendy’s could have prevented this Data Breach,” the complaint asserts. “The malicious software used in the Data Breach was more than likely a variant of ‘BlackPOS,’ the identical malware strain that hackers used in last year’s data breach at many other retail establishments. While many retailers, banks and card companies responded to recent breaches by adopting technology that helps make transactions more secure, Wendy’s has acknowledged that it has retained a security consultant to…
