A Florida federal court has granted in part and denied in part a motion to dismiss a putative class action alleging that Snyder’s-Lance, Inc. misleadingly labels its pretzels and chips as “natural” despite containing “unnatural genetically-modified organisms (‘GMOs’) and, in many cases, other unnatural artificial and synthetic ingredients.” Barron v. Snyder’s-Lance, Inc., No. 13-62496 (S.D. Fla., order entered March 20, 2015). The court first found that the plaintiffs sufficiently pled economic harm because they paid a premium price based on the “natural” representation on the labels; requiring them to compare rival products on the dates and at the locations that the plaintiffs purchased Snyder’s-Lance products would be “both impractical and impracticable. Unsurprisingly, it is also unsupported by law,” the court said. Summarizing precedent on the issue, the court then determined that the plaintiffs offered enough of a definition of “natural” to survive the pleadings stage. The plaintiffs’ allegation “that a reasonable…
Category Archives 11th Circuit
Two plaintiffs who alleged that Vital Pharmaceuticals Inc. conceals the unsafe nature of its Redline® Xtreme energy drink have settled with the company for the approximate purchase price of a single product plus interest. Mirabella v. Vital Pharm., Inc., No. 12-62086 (U.S. Dist. Ct., S.D. Fla., joint stipulation and notice of settlement filed March 16, 2015). According to a notice filed with the court, the company has agreed to pay each plaintiff the cost of one drink—$2.50 to one, $2.99 to the other—along with accrued interest within 10 days of receiving general releases from the plaintiffs. A Florida federal court refused to certify the plaintiffs’ proposed class on February 27, 2015. Additional details about that decision appear in Issue 557 of this Update. Issue 559
A Florida federal court has refused to certify a nationwide class in a case alleging that Vital Pharmaceuticals Inc. conceals the unsafe nature of its Redline® Xtreme energy drink. Mirabella v. Vital Pharm., Inc., No. 12-62086 (S.D. Fla., order entered February 27, 2015). Vital Pharmaceuticals argued that the class was unascertainable because it does not keep a master list of consumers, and customers rarely keep finished bottles that would help prove they belong in the class. The court agreed, finding that the energy drink “generally sold for less than $3.00” and customers were unlikely to retain receipts or other records of purchase; in addition, the company sells a variety of similarly branded products that may render consumers unable to determine whether they belong to the class because they might not remember which product they purchased. “Even Plaintiffs are unable to reliably recall or objectively prove how many bottles of the…
According to a joint motion filed in Florida federal court, Papa John’s International Inc. and a class of consumers have reached an agreement in a lawsuit alleging that the pizza company charged tax on delivery fees in violation of state law. Schojan v. Papa John’s Intl. Inc., No. 14-1218 (M.D. Fla., motion filed February 16, 2015). The motion requested that the district court remand the case to state court because the federal court lacks jurisdiction under the Tax Injunction Act and stipulated that the parties “have reached an agreement in principle to settle this action in its entirety upon its remand to state court.” The March 2014 complaint had alleged that Papa John’s charged more than $5 million in state tax on the more than $74.5 million in delivery fees it had earned in Florida since 2010. The court certified a class of consumers and denied the pizza company’s motion…
A Florida federal court has denied the state’s motion to dismiss a First Amendment lawsuit challenging regulations that require products labeled as “skim milk” to contain the same amount of vitamin A as whole milk. Ocheesee Creamery, LLC v. Putnam, No. 14-621 (N.D. Fla., order entered February 7, 2015). Because the process of skimming cream from milk removes much of the vitamin A content, the regulation requires skim milk to contain added vitamin A to bear the “skim milk” label; otherwise, it must be labeled as “imitation milk product.” Ocheesee Creamery’s November 2014 complaint claimed that by refusing to allow the company to sell its pasteurized skim milk with a “skim milk” label unless it added vitamin A—which the creamery views as tainting its “all-natural” products—Florida is censoring its use of the phrase “skim milk.” In its motion to dismiss, the state argued that the creamery had no standing and failed…
Anheuser-Busch Cos. has reportedly settled a consumer class action alleging that Kirin® beer is represented as a Japanese import even though the products sold in the United States are brewed with domestic ingredients in California and Virginia. Suarez v. Anheuser-Busch Cos., No. 2013-33620-CA-01 (Fla. Cir. Ct., 11th Jud. Cir., settlement preliminarily approved December 17, 2014). The October 2013 complaint alleges that Kirin’s labeling falsely implied that its products remained imported despite a 1996 agreement between the Japanese company and Anheuser-Busch to manufacture the beer in the United States and a 2006 deal that gave Anheuser-Busch the brand’s marketing and sales responsibilities. The complaint alleges that the packaging includes, in fine print, a statement clarifying that the beer is “[b]rewed under Kirin’s strict supervision by Anheuser-Busch, in Los Angeles, CA and Williamsburg, VA,” but that the statement is not visible to consumers before purchase. Under the proposed settlement agreement, consumers will…
A consumer has filed a putative class action in Florida federal court alleging that LesserEvil LLC falsely advertises its Chia Crisps as containing “a significant amount of chia seeds, when, in actuality, the Product is primarily composed of black beans, a less expensive ingredient.” Crane v. LesserEvil LLC, No. 14-62854 (S.D. Fla., filed December 16, 2014). The plaintiff asserts that LesserEvil attempted to capitalize on increasing consumer demand for antioxidant-rich chia seeds by creating a black-bean product with an insignificant amount of the seeds and advertising it as a chia-seed product. She alleges unjust enrichment and a violation of the Florida Deceptive and Unfair Trade Practices Act; she seeks class certification, compensatory damages, restitution, an injunction, and attorney’s fees. Issue 549
A Florida federal court has dismissed a case alleging that Campbell Soup Co. misleadingly labeled its V8 V-Fusion® Pomegranate Blueberry and Acai Mixed Berry products as “100% juice” in a way that implied they contained only the flavoring juices rather than a base mix of fruit and vegetable juices. Bell v. Campbell Soup Co., No. 14-291 (N.D. Fla., order entered December 11, 2014). The plaintiff argued that the label was misleading because the “100% juice” statement appeared so close to the flavor name on the label, but after examining each labeling statement, the court disagreed. “[W]hen a product’s flavor comes from a juice that is not the primary ingredient, the name may include the flavoring juice, without including other juices, so long as the label includes the statement ‘that the named juice is present as a flavoring.’ [T]he flavor—in this instance pomegranate and blueberry—must be ‘followed by the word ‘flavored’ in…
Months after a Florida federal court rejected a motion to dismiss a putative class action alleging that Bodacious Foods falsely labeled its cookies as “all natural,” The Cincinnati Insurance Co. has filed a lawsuit seeking a declaration that the policy the food manufacturer holds with it does not cover costs stemming from the alleged false labeling. The Cincinnati Ins. Co. v. Bodacious Food Co., No. 14-81515 (S.D. Fla., filed December 4, 2014). The insurance company asserts that Bodacious’s policy excludes coverage for the allegations of the putative class action, including (i) “’bodily injury’ or ‘property damage’ which may reasonably be expected to result from the intentional acts of the insured”; (ii) “’personal or advertising injury’ caused by or at the direction of the insured with the knowledge that the act would violate the rights of another”; and (iii) “’personal and advertising injury’ arising out of oral or written publication of material,…
According to a news source, New Jersey residents have filed a putative class action in state court against the Texas-based company that makes Tito’s Handmade Vodka®, the fourth such action filed within the past two months, alleging that promoting and labeling the product as “handmade” deceives consumers because the vodka is made in an industrial facility and the company sells more than 15 million bottles a year. McBrearty v. Fifth Generation, Inc. The first complaint was filed in California in September 2014 and subsequently removed to federal court, Hofmann v. Fifth Generation, Inc.; the second followed in early October in an Illinois state court, Aliano v. Fifth Dimension, Inc.; the third was filed in a Florida federal court, Pye v. Fifth Generation, Inc. The complaints variously refer to the company’s website and a Forbes article purportedly featuring images of old-time pot-still production (“i.e., in a shack containing a pot still…
