A federal court in New Jersey has granted the defendant’s unopposed motion to extinguish the stay in a lawsuit contending that Snapple beverage products are falsely advertised as “natural” because they contain high-fructose corn syrup, a purportedly non-natural ingredient. Holk v. Snapple Beverage Corp., No. 07-3018 (D.N.J., decided October 15, 2010) (unpublished). The court had stayed the litigation pending the Food and Drug Administration (FDA) reaching a decision about the definition of “natural.” According to the court’s order, “The FDA in response has declined to address that issue.” Noting that another district court in New Jersey has lifted a stay imposed for the same reason in similar litigation (Coyle v. Hornell Brewing Co.), the court agreed to reopen the case, but refused to reinstate the motions that were pending when the case was “administratively terminated.” The court ordered the parties “to move again, upon new notices of motion and in accordance with…
Category Archives 3rd Circuit
A federal court in New Jersey has issued a preliminary order granting certification of a nationwide class for settlement purposes in litigation against Unilever U.S., Inc., alleging that reduced-calorie labels for its Breyers Smooth & Dreamy Ice Cream® violated consumer fraud law. Ercoline v. Unilever U.S., Inc., No. 10-01747 (D.N.J., order filed October 4, 2010). The class consists of all U.S. purchasers of Breyers and Unilever branded ice cream products represented as reduced-calorie since April 2004. The court also approved the form and content of the class notice and will allow settlement class members to opt out if they make the request at least 20 days before the final approval hearing, scheduled for March 21, 2011. Objections to the proposed settlement must be filed within 45 days of the class notice publication. According to a news source, Unilever continues to deny that it misrepresented the calorie content of its ice cream…
The Third Circuit Court of Appeals has allowed claims filed by New Jersey blueberry farmers to proceed against the company that makes a pesticide which allegedly damaged their crops, finding that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not preempt their lawsuit. Indian Brand Farms, Inc. v. Novartis Crop Protection, Inc., No. 08-4484 (3d Cir., decided August 10, 2010). The company changed its pesticide in 1997, and plaintiffs used it the same way they had successfully used prior products, mixing it with fungicides before applying it to their crops. The company’s marketing brochure for the reformulated product said it was safer and more effective and had the same powerful product performance. The brochure contained no instructions for the product’s use, and the product label did not indicate that one of its inert ingredients was an ionic surfactant nor that it should not be mixed with fungicides. The product containing the…
A U.S. magistrate judge in New Jersey has issued an order staying a case that alleges “natural” labeling for Snapple beverages is misleading because the product contains high-fructose corn syrup (HFCS), which plaintiffs contend is not an all-natural ingredient. Holk v. Snapple Beverage Corp., No. 07-3018 (D.N.J., order entered August 10, 2010). The parties drew the court’s attention to a stay issued in similar litigation involving Arizona Iced Tea® beverages. Additional information about that case appears in Issue 356 of this Update. The stay will remain in effect for six months, pending a Food and Drug Administration (FDA) review of the matter. “That time period may be extended for good cause shown, in the event the FDA shows a willingness to consider this issue but needs more time to do so. If, on the other hand, the FDA declines to consider the issue, counsel are directed to notify the Court promptly…
A federal court in New Jersey has reportedly stayed for six months consumer fraud litigation against the company that makes Arizona Iced Tea® beverages and has asked the Food and Drug Administration (FDA) to determine whether high-fructose corn syrup (HFCS) qualifies as a “natural” ingredient. Coyle v. Hornell Brewing Co., No. 08-2797 (D.N.J., stay order entered June 15, 2010). Claiming that these beverages are deceptively marketed as “100% Natural” despite containing HFCS, the plaintiff alleges violation of the New Jersey Consumer Fraud Act, unjust enrichment and common-law restitution, and breach of express and implied warranties. The court issued the stay rather than dismiss the putative class action outright as requested by the defendants on the basis of the doctrine of primary jurisdiction. According to a news source, the court acknowledged that “categorizing HFCS as either natural or artificial for the purpose of food and beverage labeling does not fall within…
A plaintiffs’ firm has announced a $25 million partial settlement in an antitrust class action “brought on behalf of direct purchasers of shell eggs and egg products.” In re: Processed Eggs Antitrust Litigation, MDL No. 2002 (E.D. Pa.). According to Hausfeld LLP, plaintiffs alleged “a near industry-wide, price-fixing conspiracy among egg farmers which raised the price of shell eggs and egg products in violation of the Sherman Antitrust Act.” The lawsuit specifically claimed that the United Egg Producers, United States Egg Marketers and other trade associations coordinated a conspiracy “to restrict egg supply through cage space requirements, as well as coordinated molting schedules and hen reductions, and exported eggs at a loss in order to reduce domestic supplies and raise prices.” The three settling defendants—Land O’Lakes, Inc., Moark, LLC, and Norco Ranch Inc.—have reportedly agreed “to provide significant cooperation to the plaintiffs as they pursue their claims against the remaining, non-settling…
Pennsylvania-based chocolate maker Hershey Co. has filed a Lanham Act lawsuit against Williams-Sonoma Inc., alleging that the kitchen product retailer is marketing and selling a baking pan that infringes Hershey’s “Chocolate Bar Design Mark,” a purportedly distinctive rectangle scored into 12 smaller rectangles. The Hershey Co. v. Williams-Sonoma, Inc., No. 10-1011 (M.D. Pa., filed May 12, 2010). According to the complaint, Hershey has been selling its chocolate bar for more than 100 years and registered its design in 1968. Hershey alleges that defendant’s unauthorized use of the design mark will cause confusion and that potential purchasers and consumers are likely to believe the infringing brownie pan is licensed by or affiliated with Hershey or its products. As an example of that confusion, the complaint quotes alleged online consumer comments about the baking pans: “you can make your own little hershey’s miniatures”; “It’s like a Hershey’s bar with individual brownies”; and “Whether you’re…
According to news sources, a federal court in New Jersey has dismissed putative class claims filed by a vegan advocacy organization on behalf of state residents alleging consumer fraud against companies that sell hot dogs and processed meats. The Cancer Project, identified as an affiliate of the Physicians Committee for Responsible Medicine (PCRM), had asked the court to order companies such as Nathan’s Famous, Kraft Foods/Oscar Mayer, Sara Lee, ConAgra Foods, and Marathon Enterprises, to warn consumers that “Consuming hot dogs and other processed meats increases the risk of cancer.” The case was filed in a state court in July 2009; more information is available in issue 312 of this Update. A spokesperson for the American Meat Institute praised the court’s action and reportedly said, “Meat products are regulated and inspected by the U.S. Department of Agriculture and bear the federal government’s seal of inspection, showing they are wholesome and…
Supervalu, Inc. has filed an antitrust action against a number of chocolate manufacturers, alleging that they conspired to fix chocolate candy prices and overcharged the plaintiff for these products from 2002 through 2008. Supervalu, Inc. v. The Hershey Co., No. 10-1354 (E.D. Pa., filed March 29, 2010). The complaint outlines the chocolate companies’ sales during the relevant time period and details the increases in prices charged for specific products despite a decrease or lack of change in the price for cocoa beans during the same period. The plaintiff also claims that the prices of sugar, milk and labor remained relatively stable throughout the period. Included in the complaint are allegations contained in affidavits filed in connection with an investigation into the companies’ conduct by the Canadian Competition Bureau. Seeking treble damages, declaratory and injunctive relief and attorney’s fees and costs, the plaintiff alleges a single count of conspiracy to fix prices under…
A New York resident has sued Campbell Soup Co. alleging that its “Less Sodium” and “Healthy Request” tomato soups are falsely advertised because they contain the same levels of salt and fat as the company’s “regular” tomato soup. Smajlaj v. Campbell Soup Co., No. 10-1332 D.N.J., filed March 12, 2010). Seeking to certify a nationwide class of soup purchasers, the plaintiff alleges that while the company’s “25% Less Sodium” tomato soup contains 480 mg of sodium per serving, so does the company’s “regular” tomato soup. She also alleges that “Healthy Request” soup, advertised as “low in fat and cholesterol,” contains 1.5 grams of fat per serving, while the “regular” tomato soup has 0 grams of fat per serving. According to the complaint, the company sells the “Less Sodium” and “Healthy Request” soups “for a substantially higher price—up to at least 50% higher,” than the “regular” soup. The plaintiff alleges violation of…
