Four consumers have filed a putative class action alleging that Kellogg Sales Co. misleadingly markets its products as promoting health and wellness despite containing added sugars. DiGregorio v. Kellogg Sales Co., No. 19-0632 (N.D.N.Y., filed May 28, 2019). The complaint details studies about the health effects of sugars on the human body and argues that the "high amounts of added sugar" in Kellogg's cereals and bars render regular consumption of the products as "likely to contribute to excess added sugar consumption, and, thereby, increased risk for and contraction of chronic disease." "Although Plaintiffs were the victims of Kellogg's longtime and general policy and practice with respect to the cereals and snack bars they purchased and the labels they saw, this Complaint and their claims are not so limited; rather, plaintiffs seek through this lawsuit to enjoin Kellogg's policy and practice generally, including but not necessarily limited to the products, labels,…
Category Archives 2nd Circuit
A consumer has filed a putative class action alleging that Stewart's Fountain Classics beverages are misleadingly marketed as having a "Creamy Vanilla Taste" despite containing artificial flavors. Dalton v. Mott's LLP, No. 19-2960 (E.D.N.Y., filed May 19, 2019). The plaintiff admits that the label discloses the product contains artificial flavors but argues that the "nostalgic imagery and glass bottles assist in focusing the consumers' attention on the upper-right characterizing flavor claim, and away from the inconspicuous disclosure of artificial flavors at the bottom of the label." For alleged violations of California's consumer-protection statutes, negligent misrepresentation, fraud and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney's fees.
A consumer has filed a putative class action alleging that Nature's Path Foods USA Inc. misleads consumers by marketing the filling of its Wildberry Acai Toaster Pastries as containing high levels of acai berries despite containing more apples, raspberries, blueberries and other fruits. Louis v. Nature's Path Foods USA Inc., No. 19-2584 (E.D.N.Y., filed May 1, 2019). The complaint features an image of the front and back labels, alleging that acai berries account for 45 percent of the berries shown in packaging images, and the plaintiff asserts that the "use of the term 'acai' in the Product name and the numerical superiority of the acai berries depicted relative to other berries cause a reasonable consumer to expect the Products contain more acai berries than other identified and named fruit ingredients." The plaintiff also alleges that the ingredient list includes a number of fruits—apples, blueberries, strawberries and others—in whole form but…
Post Consumer Brands LLC allegedly misleads consumers by marketing its Cocoa Pebbles and related products as made with "real cocoa" despite listing only "cocoa (processed with alkali)" in the ingredients panel, according to a consumer's putative class action. Copeland v. Post Consumer Brands LLC, No. 19-2488 (E.D.N.Y., filed April 26, 2019). The complaint asserts that alkali in cocoa affects "the taste and color of the cocoa powder to such an extent that they are a characterizing feature"; further, consumers believing the product to contain "real cocoa" expect "the cocoa powder component to be nutritionally and organoleptically superior than it actually is." For alleged violations of California's consumer-protection statutes as well as negligent misrepresentation, breach of warranties, fraud and unjust enrichment, the plaintiff seeks class certification, injunctive relief, restitution, damages and attorney's fees.
The U.S. Court of Appeals for the Second Circuit has denied a plaintiff's appeal aiming to overturn a lower court's dismissal of a lawsuit alleging that Diet Dr Pepper is misleadingly named because it does not cause weight loss. Excevarria v. Dr Pepper Snapple Grp., Inc., No. 18-1492 (2nd Cir., entered April 17, 2019). "Plaintiffs argue that the use of the word 'diet' in Diet Dr Pepper is misleading because it conveys certain promises about the beverage’s usefulness in assisting with weight loss or healthy weight management, when in fact (Plaintiffs allege, based on a number of studies) the aspartame in Diet Dr Pepper likely causes weight gain," the appeals court stated in its brief opinion. "However, even assuming (without deciding) that Plaintiffs are right that a reasonable consumer would understand the word 'diet' to convey promises about weight loss or management, they have still failed to state a claim…
A New York federal court has dismissed a putative class action alleging that celebrity chef Rachael Ray's brand of dog food, Rachael Ray Nutrish, is misleadingly marketed as "natural" because it contains traces of pesticides. Parks v. Ainsworth Pet Nutrition, LLC, No. 18-6936 (S.D.N.Y., entered April 18, 2019). The court found that the plaintiff could not show that trace amounts of a pesticide would make the marketing of a "natural" product misleading. The plaintiff "asserts that the Products contain trace amounts of glyphosate, but not that the Products are composed of unnatural ingredients," the court found. "Moreover, Plaintiff does not set forth in his complaint the amount of glyphosate in the Products or whether that amount is harmful or innocuous. He argues that '[if] glyphosate is in the Products at any level . . . then the Products cannot be called 'Natural.'' [] But a reasonable consumer would not be…
A plaintiff has filed a putative class action alleging that Mondelez Global's Oreos—marketed as "always made with real cocoa"—are misleadingly marketed because they contain cocoa processed with alkali. Harris v. Mondelez Global LLC, No. 19-2249 (E.D.N.Y., filed April 17, 2019). The complaint describes the alkali processing method, which "reduces the acidity of cocoa powder," "detracting from the 'real cocoa' taste." The plaintiff asserts that the phrase "'always made with real cocoa' is intended to differentiate the cocoa in the Products from other cocoa ingredients bearing the standard cocoa designation, i.e., 'cocoa' or 'cocoa processed with alkali,' and implies the cocoa present in the Products is nutritionally and organoleptically superior." Further, "[n]o reasonable consumer would expect the cocoa in the Products to have been made with and contain alkalis because 'real,' in modifying the word 'cocoa,' represents the cocoa powder is included in its most simplified form." The plaintiff seeks class…
Two consumers have filed a putative class action alleging that Beverage Marketing USA Inc. markets its AriZona iced green tea products as containing “ginseng for energy” despite lacking “any detectible amounts of ginseng, if indeed it contains any ginseng at all.” Niles v. Beverage Marketing USA Inc., No. 19-1902 (E.D.N.Y., filed April 2, 2019). The complaint asserts that ginseng demand “has skyrocketed while supply has dwindled, causing prices to surge to above $1,000 per pound. Ginseng is so coveted in the marketplace that certain species of ginseng have been harvested to the edge of extinction.” The plaintiffs allege that they “retained two respected food laboratories to conduct three tests of the Product for ginsenosides,” “the main chemical constituent of ginseng,” and apparently found that “none of the three tests were able to detect any amount of ginsenosides in the Product.” Additional tests allegedly showed that AriZona’s competitors’ products did contain…
A consumer has filed a putative class action alleging that Bareburger Group misrepresents its restaurants as selling only organic food despite using some non-organic ingredients in its products. Rosenberg v. Bareburger Grp., No. 19-1634 (E.D.N.Y., filed March 22, 2019). The plaintiff and Bareburger were the subjects of a New York Times article in August 2018 that explored the use of the term "organic" in restaurant advertising. The complaint asserts that Bareburger features the term "organic" throughout its signage, menu descriptions and marketing but does not ensure that the products are fully organic. "Defendant's executives confirmed that approximately 75 to 80 percent of the burgers were organic, not 100 percent, contrary to the labels," the plaintiff alleges, citing the New York Times article. "Defendant's 'Organic' restaurants have countless non-organic ingredients including lamb and bison and mayonnaise and tomatoes—crucial condiments when it comes to dressing up a purportedly organic burger." For allegations…
A lawsuit alleging that StarKist misleads consumers by paying to feature the American Heart Association's (AHA's) Heart-Check Mark will continue after a New York federal court refused to dismiss the complaint. Warner v. StarKist Co., No. 18-0406 (N.D.N.Y., entered March 25, 2019). The court refused to dismiss the plaintiff's allegation that the Heart-Check Mark materially misleads consumers—finding "StarKist’s failure to argue that the omission of language indicating it paid to place the Heart Check-Mark on its products would not mislead a reasonable consumer"—but noted that "this is a close call, which could be revisited at the summary judgment stage." The court dismissed the plaintiff's request for an injunction because it found "no 'real and immediate' threat of future injury" because the plaintiff's "own allegations indicate that he will not purchase or pay as much for the product going forward."
