Category Archives 2nd Circuit

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,…

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,…

In a summary order, the U.S. Court of Appeals for the Second Circuit has affirmed a lower court's judgment in favor of Monini North America in a lawsuit alleging that consumers were misled about the truffle content of the company's truffle-flavored oil. Jessani v. Monini N. Am. Inc., No. 17-2504 (2nd Cir., entered December 3, 2018). "According to plaintiffs, truffles are the most expensive food in the world," the court stated. "In this context, representations that otherwise might be ambiguous and misleading are not: it is simply not plausible that a significant portion of the general consuming public acting reasonably would conclude that Monini’s mass produced, modestly-priced olive oil was made with 'the most expensive food in the world.' [] This is particularly so given that the product’s ingredient list contains no reference to the word 'truffle' and the primary label describes the product only as being 'Truffle Flavored.' Accordingly,…

A consumer has alleged that Nuts 'N More LLC's White Chocolate Peanut Spread does not contain the amount of milkfat required to meet the U.S. Food and Drug Administration (FDA) definition of "white chocolate." Morrison v. Nuts 'N More LLC, No. 18-11192 (S.D.N.Y., filed November 30, 2018). According to the complaint, FDA requires white chocolate to contain "not less than 3.5 percent by weight of milkfat," but the white chocolate spread does not contain any dairy ingredients. "Because there is no additional milkfat to supplement the Product to meet FDA definition of white chocolate, the Product cannot be marketed as white chocolate and thus must be deemed imitation white chocolate," the plaintiff asserts. She alleges that she and other consumers paid a premium for what she believed to be white chocolate "and received an inferior Product than what was represented to them by Defendant." For alleged violations of New York…

A consumer has filed a putative class action alleging that Reed's Inc. misleads consumers by labeling its Virgil's Sodas as made with "natural ingredients" and "no preservatives" despite containing citric acid. Mason v. Reed's Inc., No. 18-10826 (S.D.N.Y., filed November 19, 2018). The complaint asserts that citric acid "is a synthetic compound" "usually produced from certain strains of the mold Aspergillus niger" and "the application of chemical solvents such as sulfuric acid." The plaintiff alleges that the company's "misrepresentations deceive consumers into thinking they are receiving healthier and 'natural' soda, when they are not." "Consumers cannot discover the true nature of the Products from reading the label," the plaintiff argues. "Discovery of the true nature of the content of the Products requires knowledge of chemistry that is not available to the average reasonable consumer." She seeks class certification, an injunction requiring "proper, complete, and accurate labeling of the products," damages…

A consumer asserts that Miyoko's Kitchen Inc.'s "vegan butter" misleads consumers into believing the product is "a 'form' of butter" despite lacking "any milk or dairy ingredients and the functional, nutritional, sensory and organoleptic attributes which consumers associate with butter." Brown v. Miyoko's Kitchen Inc., No. 18-6079 (E.D.N.Y., filed October 30, 2018). The products "bask in dairy's 'halo' by using familiar terms to invoke positive traits—including the significant levels of various nutrients typically associated with real dairy foods," the complaint alleges. The plaintiff argues that consumers "prefer butter over its imitators" because of its "unique and unduplicated taste," "mouthfeel" and "ability to enhance the texture of and other qualities of (mashed) potato products." "The plant-based Product is not butter because it is derived from coconut (lauric) oil and nut ingredients, among others, and lacks any fat derived from cow's milk," the plaintiff argues. The product meets U.S. Food and Drug…

A consumer has alleged that Iberia Foods misleads consumers by substituting giant squid for octopus in three of its octopus products. Zapata Fonseca v. Iberia Foods Corp., No. 18-6279 (E.D.N.Y., filed November 5, 2018). The plaintiff's putative class action asserts that Iberia and its supplier, Orbe, either knew or should have known that the products were not octopus, which the plaintiff purportedly discovered through third-party DNA testing. "Squid is significantly cheaper and of a lower quality than octopus," the complaint argues. "In fact, the squid undergoes a chemical treatment in order to make it more similar to octopus in its texture. This process also eliminates a very characteristic taste of the dosidicus gigas with chemical substances to obtain a neutral flavor. Additional testing has revealed that this bait-and-switch, and active concealment, is occurring throughout the Orbe Cross-Brand Octopus Products as well." For alleged violations of New York consumer-protection statutes and…

A consumer has alleged that Apple & Eve markets its Switch Sparkling Juices as containing no added sugar or preservatives despite containing citric and ascorbic acids and having a "high calorie count when compared to competitors' products that do not have the 'No Sugar Added' claim." Reaves v. Apple & Eve LLC, No. 18-5728 (E.D.N.Y., filed October 12, 2018). The complaint asserts that consumers believe the juices to be "a low-calorie product" because of the "no sugar added" marketing message. "Consumers associate claims about the absence of sugar with lower calorie counts when there is no disclaimer stating otherwise," the complaint alleges. "The [U.S. Food and Drug Administration] has reached the same conclusion: 'Consumers may reasonably be expected to regard terms that represent that the food contains no sugars or sweeteners e.g., 'sugar free,' or 'no sugar,' as indicating a product which is low in calories or significantly reduced in…

A plaintiff has filed a putative class action alleging Iberia Foods Corp. misleads consumers by selling its oil as Extra Virgin Olive Oil despite containing 80 percent sunflower oil. Okoe v. Iberia Foods Corp., No. 18-9161 (S.D.N.Y., filed October 5, 2018). The front label of the product, the complaint alleges, features a dark green background with the phrase "Sunflower Oil &" in black text and "Extra Virgin Olive Oil" in gold, allegedly causing the sunflower oil disclosure to be "barely distinguishable from the background" and "readily overlooked by consumers." The plaintiff cites a number of sources—including the BBC, Quora, activationproducts.com and finecooking.com—to assert that sunflower oil is less desirable to consumers than extra virgin olive oil because of the purported health benefits of the latter. For allegations of fraud and violations of New York consumer-protection statutes, the plaintiff seeks class certification, damages, an injunction and attorney's fees.

Three consumers have filed a putative class action alleging that Arizona Beverage Co.’s teas, energy drinks and fruit juices are misleadingly marketed as containing “no preservatives” despite containing citric and ascorbic acids. Kubilius v. Arizona Beverage Co., No. 18-9075 (S.D.N.Y., filed October 3, 2018). The plaintiffs assert that they paid a premium for the products believing them to be preservative-free but later discovered that the products contain citric and ascorbic acid, which allegedly “serve as preservatives by functioning as sequestrants, removing compounds and elements from their environment so as to slow the degradation of food and beverages.” The complaint also cites a declaration from a food scientist who asserts that “while citric acid and ascorbic acid can also be employed by a manufacturer that intends to impart taste, a greater quantity of these substances is required to impart taste than to preserve foods and beverages. … Even if imparting taste…

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