An Ohio company has filed a lawsuit alleging Wisconsin’s ban on sales of ungraded butter violates the Commerce Clause, due process, equal protection and free speech. Minerva Dairy, Inc. v. Brancel, No. 17299 (W.D. Wis., filed April 20, 2017). In early 2017, Wisconsin began enforcing a 1954 law requiring all butter sold in the state to bear either a state or a U.S. Department of Agriculture (USDA) grade mark, telling retailers and producers to remove out-of-state butter from store shelves or risk fines and imprisonment. Minerva Dairy, Inc. argues that the ban serves no rational or legitimate governmental interest. “In contrast to butter inspection, which ensures that the butter comports with health and safety regulations, butter grades are used only to ensure a government-mandated taste,” the complaint argues. Minerva alleges that small companies are unable to afford obtaining USDA grading and creating separate labels solely for Wisconsin sales. Accordingly, the…
Category Archives 7th Circuit
The Irish distributor of Kerrygold butter won an emergency restraining order against a Wisconsin creamery after alleging the creamery backed out of an agreement to process Kerrygold locally and later created its own nearly identical product, “Irishgold,” infringing Kerrygold’s trademark. Ornua Foods N. Am., Inc. v. Eurogold USA LLC, No. 170510 (E.D. Wis., filed April 10, 2017). A Wisconsin federal court granted the order after finding Ornua Foods, Kellygold’s maker, likely to win the trademark case it filed on the merits. After Kerrygold became the top-selling imported butter in the United States, Wisconsin removed Kerrygold butter from stores under a statute requiring all butter sold in the state to bear either a Wisconsin or federal grade mark. After the ban, Ornua Foods began working with Wisconsin state officials and defendant Old World Creamery to process the Irish-made butter a second time, making it eligible for a state grade mark. The…
Heartland Consumer Products, producer of sucralose-based sweetener Splenda®, has filed a lawsuit against Dunkin’ Brands, Inc. and its franchisees alleging the restaurant chain misleads its customers into believing it carries Splenda® while providing a different sweetener made in China. Heartland Consumer Prods. v. Dunkin’ Brands, Inc., No. 16-3045 (S.D. Ind., Indianapolis Div., filed November 7, 2016). According to the complaint, Dunkin regularly purchased Splenda® from Heartland until April 2016, when it switched to a different sucralose sweetener. Heartland asserts that Dunkin employees continue to tell customers that the sweetener is Splenda even though the new sweetener is a “Chinese-made, off-brand sucralose.” Heartland further argues that Dunkin appropriated its “Sweet Swaps” program by creating a Dunkin-branded “Smart Swaps” program. The complaint asserts that Heartland received multiple reports of consumer confusion, including one customer who reported that a Dunkin employee said Dunkin had “bought out Splenda.” For allegations of trademark infringement, dilution, false…
Two horse owners have filed a lawsuit against Archer Daniels MidlandCo. alleging feed produced by its subsidiary, ADM Alliance Nutrition, was contaminated with monensin, a cattle-feed additive poisonous to horses. Berarov v. Archer Daniels Midland Co., No. 16-7355 (N.D. Ill., filed July19, 2016). The plaintiffs argue that ADM knowingly manufactured cattle feed containing monensin in the same facility as its horse feed and supplement production, resulting in cross-contamination between the two. The complaint details the effects of monensin on horses, including equine heart failure and other major organ damage, which the plaintiffs argue can occur with doses as low as 1.38 mg/kg of body weight. In a statement,ADM disputed this toxicity level, arguing that a horse can safely consume 9.5 mg/kg of body mass, according to the complaint. For allegations of negligent misrepresentation, strict product liability, unjust enrichment, breach of warranties and violations of Illinois consumer-protection laws, the plaintiffs seek class…
A consumer has filed a putative class action against The Quaker Oats Co. alleging the company misrepresents its oatmeal products as natural and “eco-friendly” despite containing glyphosate, “a potent herbicide that last year was declared a probable human carcinogen by the cancer research arm of the World Health Organization.” Wheeler v. Quaker Oats Co., No. 16-5776 (N.D. Ill., removed to federal court June 1, 2016). The complaint argues that although “[t]here is nothing unlawful about Quaker Oats’ growing and processing methods,” the company has misled consumers by claiming “that Quaker Oats is something that it is not in order to capitalize on growing consumer demand for healthful, natural products.” The plaintiff asserts that no reasonable consumer would believe that Quaker’s products “contain anything unnatural, or anything other than whole, rolled oats” after seeing Quaker’s packaging and advertising. For allegations of unjust enrichment, breach of warranties and violations of Illinois’ consumer-protection…
The U.S. Judicial Panel on Multidistrict Litigation has consolidated several putative class actions against a number of companies alleging they labeled their grated-parmesan products as “100% Parmesan” despite containing cellulose. In re 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., MDL No. 2705 (J.P.M.L., transfer order entered June 2, 2016). The consolidated cases include 16 lawsuits and 33 potential tag-along actions filed against Kraft, Target, Albertsons and others in jurisdictions across the country. The parties petitioned for centralization in the federal courts of Missouri, Minnesota, Pennsylvania and other states, but the court chose the Northern District of Illinois as “a convenient and accessible forum for actions filed throughout the country regarding products sold nationwide.” The parties also disputed whether the cases should be consolidated into a single multi-product MDL or separate MDLs grouped by the product or primary corporate defendant; the court held that “a single, multi-product MDL is…
A consumer has filed a proposed class action against Caribou Coffee Co. Inc. arguing the company violated the Telephone Consumer Protection Act (TCPA) by sending her “numerous unsolicited SMS text messages.” Farnham v. Caribou Coffee Co. Inc., No. 16-0295 (W.D. Wis., filed May 5, 2016). The plaintiff asserts that Caribou sent her 50 text-message advertisements from March to May 2016 without her consent. For allegations of negligent and willful violations of TCPA, the plaintiff seeks statutory damages of $500 per negligent violation and $1,500 per willful violation as well as an injunction and class certification. Issue 604
Public-interest group Cornucopia Institute has filed a lawsuit against Tom Vilsack in his capacity as Secretary of Agriculture alleging that he and the U.S. Department of Agriculture (USDA) violated the Organic Foods Production Act of 1990 by appointing “unqualified individuals” to the National Organic Standards Board (NOSB), which develops a list of synthetic substances allowed in the production of organic food, the National List of Allowed and Prohibited Substances. Cornucopia Inst. v. Vilsack, No. 16-0246 (W.D. Wis., filed April 18, 2016). Federal law requires the composition of the NOSB to be “balanced and independent,” Cornucopia argues, but USDA “inappropriately influenced” the board in a number of ways, including (i) disbanding its Policy Development Subcommittee, (ii) allowing the self-appointment of the board’s co-chairperson, and (iii) removing the board’s ability to set its own work plan. “USDA’s unlawful meddling with the composition and rules governing the NOSB has created a NOSB hostile…
The Seventh Circuit Court of Appeals has revived a data breach lawsuit against P.F. Chang’s China Bistro, Inc., finding that the two plaintiffs have standing to sue despite eating at a restaurant apparently not linked to the breach. Lewert v. P.F. Chang’s China Bistro, Inc., No. 14-3700 (7th Cir., order entered April 14, 2016). Additional details about the breach appear in Issue 526 of this Update. The plaintiffs ate at an Illinois location of P.F. Chang’s two months before the company announced its payment system had been hacked, revealing personal information and credit card numbers. One plaintiff noticed fraudulent charges on his card and purchased credit-monitoring services, while the other alleged that he spent time and effort monitoring his card statements and credit report. Each brought separate lawsuits, which were later consolidated then dismissed for lack of standing. Following its announcement about the data breach, P.F. Chang’s identified 33 restaurants…
The Seventh Circuit Court of Appeals has upheld an Indiana law restricting the sale of cold packaged beer in convenience stores, pharmacies and groceries in incorporated towns, finding that the statute survives a rational-basis analysis. Petroleum Mktrs. & Convenience Stores Assoc v. Cook, No. 14-2559 (7th Cir., order entered December 14, 2014). The court found that although Indiana does not have "nearly absolute" power to regulate alcohol sales as the state had argued, it may prohibit stores from selling cold beer, even if it also allows the same stores to sell chilled beverages with higher alcohol content such as wine coolers. The court distinguishes between the licenses required by liquor stores, which can sell cold beer, and the licenses available to convenience stores and similar retailers; liquor stores "are subject to stricter regulations designed to enhance the State's ability to limit and control the distribution of alcohol," including minimum ages…
