A consumer has filed a putative class action alleging Tipp Distributors Inc. mislabels its Steaz iced tea as "lightly sweetened" despite containing "objectively high amounts of sugar, as added sugar." Taylor v. Tipp Distrib. Inc., No. 20-0712 (E.D.N.Y., filed February 9, 2020). Consumers paid a premium for Steaz believing it to contain less sugar than its competitors, the complaint asserts, but it contains 20 grams of added sugar, 40% of the recommended daily intake. "By consuming the Products and the 40% DV of added sugar, the average person who wishes to follow the DGA must consume no more than 30 grams of sugar across 1,920 calories (2,000 calories – 80 calories)," the plaintiff argues. "It will be difficult to impossible for the average, reasonable consumer to not consume more than 30 grams of sugar in everything else they eat or drink because many foods and beverages have added sugars, albeit…
Category Archives 2nd Circuit
Hornell Brewing Co. Inc. and its subsidiary Arizona Beverage Co. allegedly misrepresent their fruit snacks product as all natural despite containing citric acid, gelatin, ascorbic acid, dextrose, glucose syrup and modified food starch, a consumer alleges. Silva v. Hornell Brewing Co. Inc., No. 20-0756 (E.D.N.Y., filed February 11, 2020). The plaintiff argues that these ingredients are synthetic and cites a 2013 U.S. Department of Agriculture draft guidance decision delineating what materials are natural or synthetic. "Congress has defined 'synthetic' to mean 'a substance that is formulated or manufactured by a chemical process or by a process that chemically changes a substance extracted from naturally occurring plants, animals, or mineral sources," the complaint argues. Further, "[s]urveys and other market research, including expert testimony Plaintiff intends to introduce, will demonstrate that the term 'natural' is misleading to a reasonable consumer because the reasonable consumer believes that the term “natural,” when used to…
A New York federal court has denied class certification to a group of consumers alleging that they were misled by Kellogg Co.'s Pringles Salt & Vinegar chips label into believing the product contained no artificial ingredients. Marotto v. Kellogg Co., No. 18-3545 (S.D.N.Y., entered December 5, 2019). The plaintiff identified himself as a chef who has a deep knowledge of molecular gastronomy and is married to an attorney who works at a law firm seeking to represent the putative class. "Unfortunately, for [the plaintiff], once he popped, the fun did, ultimately, stop," the court noted, explaining that the plaintiff stated he was misled by the sodium diacetate and malic acid on the ingredient list. The court found that the plaintiff "plainly failed to satisfy the predominance requirement" because only four of 20 Pringles labels contained the challenged "No Artificial Flavors" label. "How is the Court supposed to sift through tens…
A consumer has filed a putative class action alleging Whole Foods Market Group Inc. lists "organic dehydrated cane juice solids" as an ingredient in its 365 Everyday Value instant oatmeal rather than "sugar." Warren v. Whole Foods Mkt. Grp. Inc., No. 19-6448 (E.D.N.Y., filed November 15, 2019). "Consumers expect ingredients on a product to be declared by their common or usual name," the complaint asserts. "Where an ingredient contains the term 'juice,' consumers expect that ingredient to be derived from a consumable fruit or vegetable." The plaintiff seeks class certification, injunctive relief, damages and attorney's fees for alleged negligent misrepresentation, fraud and breach of express warranty.
Joining a number of pending putative class actions, a New York plaintiff's firm has filed three lawsuits alleging that Wegmans Food Markets Inc., Whole Foods Market Group Inc. and Moran Foods LLC mislead consumers by marketing their products as vanilla-flavored while using artificial flavors. As with similar cases previously filed, the complaints target dairy and associated products—ice cream and almondmilk—and allege that the front-of-package representation of the flavor as "vanilla" amounts to violations of New York's consumer-protection statutes. Arriola v. Wegman Food Markets Inc., No. 19-9227 (S.D.N.Y., filed October 4, 2010); Pinkston v. Whole Foods Mkt. Grp. Inc., No. 19-9362 (S.D.N.Y., filed October 9, 2019); Smith v. Moran Foods LLC, No. 19-9453 (S.D.N.Y., filed October 12, 2019).
A plaintiff's attorney firm has filed three putative class actions in New York federal court alleging that products marketed as "vanilla" are misleading consumers by implying that the products contain vanilla rather than vanilla flavoring. A lawsuit targeting Califia Farms' Vanilla and Unsweetened Vanilla varieties of almondmilk asserts that the "front labels represent that the vanilla (i) flavor is exclusively derived from the vanilla plant and (ii) present in an amount sufficient to independently characterize the Products" and alleges that the "representations are misleading because they do not reference flavors other than vanilla even though the ingredient lists reveal the Products contain 'Natural Flavor.'" Cicciarella v. Califia Farms, LLC, No. 19-8785 (S.D.N.Y., filed September 22, 2019). A similar lawsuit challenges Aldi Inc.'s Friendly Farm brand on similar grounds, alleging the almondmilk's vanilla varieties are misleading consumers. Parham v. Aldi Inc., No. 19-8975 (S.D.N.Y., filed September 26, 2019). A third complaint…
A California federal court has refused to dismiss a lawsuit alleging that Danone US Inc. creates "a misleading impression regarding the health-promoting benefits" of its Silk Coconutmilk because it markets the product with an accurate representation of the product as free of cholesterol. Marshall v. Danone US, Inc., No. 19-1332 (N.D. Cal., entered September 13, 2019). Danone argued that the cholesterol representation was made in close proximity to the nutrition panel showing that the product contained three grams of saturated fat, but the court noted that the total is one gram more than permitted under federal regulations on the use of "cholesterol-free." "Danone is missing the point," the court held. It noted that the U.S. Food and Drug Administration (FDA) "has expertise in, and responsibility for, determining what food labeling practices may mislead consumers" and that the agency "believes that consumers may understand 'cholesterol-free' to convey certain health benefits that…
A New York federal court has granted Crystal Farms Refrigerated Distribution Co.'s motion to dismiss a putative class action alleging that the packaging of Diner's Choice mashed potatoes misleads consumers by featuring "Made with Real Butter" on the front despite containing both butter and margarine. Reyes v. Crystal Farms Refrigerated Distrib. Co., No. 18-2250 (E.D.N.Y., entered July 26, 2019). The court dismissed the allegations relying on the "butter" representation because the statement "is not misleading. Defendant's mashed potatoes contain butter. [] To the extent that including a label on a mashed-potatoes package indicating that the product is 'made with real butter' may create confusion as to whether the mashed potatoes also contain margarine, such confusion is sufficiently dispelled by the ingredients label on the back of the package, which states twice—and once in bold font set apart from the rest of the items listed in the ingredients label—that the product…
Friendly's Manufacturing and Retail markets its ice-cream products as "flavored exclusively from vanilla beans" but uses artificial flavors in at least 57 products, including cakes, cartons, cones, bars and sandwiches, according to a consumer's putative class action. Charles v. Friendly's Mfg. & Retail LLC, No. 19-6571 (S.D.N.Y., filed July 15, 2019). The complaint asserts that Friendly's sells its products as "vanilla" flavored but does not use vanilla-derived flavor. "The Products are misleading because they are marketed as vanilla ice cream adjacent to other vanilla ice cream products which contain vanilla flavoring exclusively from vanilla beans," the plaintiff argues, providing a competitor's label showing "vanilla extract" as an ingredient. "Where two similarly labeled products are situated in the same category or section of a store and their representations as to quality and/or fill are identical, yet the former is lacking the quantity of the characterizing ingredient (vanilla) or qualities, the reasonable…
A plaintiff has alleged that Danone North America misleads consumers by labeling its Dannon and Oikos yogurts as featuring "vanilla with other natural flavors" because the products contain "less vanilla flavor derived from vanilla beans than their name suggests." Andriulli v. Danone N. Am., No. 19-5165 (S.D.N.Y., filed June 2, 2019). The plaintiff asserts that the product flavor "should be labeled 'Vanilla-Vanillin Extract/Flavoring/Powder, Imitation' so consumers are not misled as to the flavor of the Products." Further, the complaint states, Oikos vanilla-flavored yogurt includes beta carotene, which "has the effect of modifying the color of the product closer to the color consumers associate with a product flavored exclusively by vanilla bean components — a tanner, darker shade like in the following stock image." The complaint then features a light orange square. "This coloring makes the consumer less likely to question or probe into the amount and type of vanilla flavor…
