An Oregon plaintiff has filed a putative class action against the makers of Cascade Ice Coconut Water alleging the product contains no coconut. Silva v. Unique Beverage Co., LLC, No. 17-0391 (D. Or., filed March 9, 2017). The complaint alleges that “[d]espite the large colorful coconuts and the word 'Coconut' that defendant puts on the front of its label, defendant’s product actually contains no coconut water, no coconut juice, no coconut pulp, no coconut jelly.” The plaintiff also claims that consumers buy coconut water for its “special health qualities,” making its sales a “billion-dollar industry.” Washington-based Cascade Ice’s label lists the primary ingredients of the coconut water product as carbonated water, strawberry puree, citric acid, pear juice concentrate and “natural flavors.” For violations of the Oregon Unlawful Trade Practices Act, the plaintiff seeks equitable and injunctive relief, actual, statutory and punitive damages and attorney’s fees. Issue 628
Category Archives 9th Circuit
A California federal court has postponed issuing a final dismissal order in Safeway Inc.’s proposed settlement with a putative class, ordering the parties to develop a plan for publicizing the settlement to alert other potential plaintiffs that the statute of limitations will begin to run. In re Safeway Tuna Cases, No. 15-5078 (N.D. Cal., order entered March 13, 2017). The class action, involving allegations of underfilled cans of tuna sold in Safeway grocery stores and those of its subsidiary Vons, received significant media coverage in outlets such as the Los Angeles Times and the San Francisco Chronicle. The court said it “is concerned that potential class members who may have seen such coverage would now be unaware that the case has been dismissed, and that the limitations period for filing a further suit therefore may run upon dismissal.” The U.S. Supreme Court has held that the filing of a class…
A California federal court granted Campbell Soup Co.’s motion to dismiss a putative class action claiming the company “falsely and misleadingly labeled and advertised” one of its soups, ruling that the plaintiff’s claims are expressly preempted by federal law. Brower v. Campbell Soup Co., No. 16-1005 (S.D. Cal., order entered March 21, 2017). The plaintiffs alleged that Campbell’s Chunky Healthy Request Grilled Chicken & Sausage Gumbo was mislabeled and advertised as healthy despite containing artificial trans fat. Additional details about the complaint appear in Issue 602 of this Update. Campbell contended that the plaintiff’s claims were preempted by the Poultry Products Inspection Act (PPIA) and the Federal Meat Inspection Act (FMIA), both of which prohibit the sale of products with false or misleading labeling or marketing. Pursuant to both statutes, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) inspects and approves product labels. The court agreed, noting…
A consumer has filed a putative class action against the manufacturers of Rachael Ray’s dog foods, alleging that the products are labeled as “natural” despite containing artificial or synthetic chemicals. Grimm v. APN, Inc., No. 17-0356 (C.D. Cal., filed February 28, 2017). The plaintiff claims that she only bought the dog foods, sold under the Nutrish , Dish, Zero Grain and Just 6 labels, because they were labeled as natural and free of preservatives and would have purchased other products had she known the foods contained “artificial preservatives and unnatural ingredients.” The plaintiff alleges the defendant manufacturers “capitalized” on consumer preferences for natural food products. The product labels indicate that the dog foods contain L-ascorbyl-2 polyphosphate, menadione sodium bisulphate complex, thiamine mononitrate, and caramel color. For alleged negligent representation, violations of California’s Legal Remedies Act, False Advertising Law and Unfair Competition Law, breach of warranties and quasi-contract, the plaintiff is…
A consumer has filed a putative class action against Ferrara Candy Co. claiming that its packaging of Jujyfruits and other candies misleads consumers by misrepresenting the amount of candy contained in each box. Iglesias v. Ferrara Candy Co., No. 17-0849 (N.D. Cal., filed February 21, 2017). The plaintiff claims that Ferrara “shortchanges consumers” by underfilling its opaque candy boxes. In movie theaters, where boxed candies are sold, the boxes are kept behind glass showcases, the complaint asserts, and consumers have no opportunity to examine net weight, serving disclosures or other labeling until after paying for the candy. Moreover, the plaintiff claims that consumers’ purchasing decisions are heavily dependent on product packaging and that “consumers are apt to choose the larger box because they think it’s a better value.” The action includes other candy lines manufactured by Ferrara, including Lemonhead , RedHots , Chuckles , Brach’s and Atomic Fireball products. For…
A California-based seafood company has reportedly been sentenced in federal court for knowingly selling mislabeled frozen fish fillets. United States v. Seafood Solutions, Inc., No. 11-297 (C.D. Cal., sentencing February 6, 2012). Seafood Solutions, Inc. agreed to plead guilty to the charge in July 2011, as part of a federal investigation into companies that had been selling Asian catfish imports under other labels to avoid anti-dumping duties. Under the terms of the agreement, the company was fined $700,000 and will pay an additional $300,000 to the National Fish and Wildlife Foundation. Two California men also pleaded guilty in connection with the scam and are apparently scheduled for sentencing on February 12, 2012. See Law360, February 7, 2012.
John Fox, former owner of wine shop Premier Cru, has reportedly been sentenced to 6.5 years in prison after pleading guilty to wire fraud and defrauding investors out of at least $45 million. As part of the scheme, Fox sold wine to customers around the world, embezzled the money, then used newer purchasers’ money to buy and ship the wine promised to earlier purchasers, an arrangement one prosecutor called a “wine Ponzi scheme.” Fox reportedly spent the money on luxury cars, personal credit cards and gifts for women he met online. He began serving his sentence immediately. See Los Angeles Times, December 15, 2016. Issue 626
A consumer has filed a projected class action against Tradewinds Beverage Co. alleging the company’s iced tea products are misleadingly labeled as natural despite containing caramel color. Martin v. Tradewinds Beverage Co., No. 16-9249 (C.D. Cal., filed December 14, 2016). The plaintiff argues that she regularly paid a premium for Tradewinds Iced Tea products believing them to be made of all-natural ingredients. For alleged violations of California’s consumer-protection statutes, she seeks a corrective advertising campaign, destruction of all misleading advertising materials, restitution, damages and attorney’s fees. Issue 626
A California federal court has dismissed a lawsuit alleging Kellogg Co. misrepresents its Mother’s® Cookies products as free of trans fats despite containing partially hydrogenated oil (PHO). Hawkins v. Kellogg Co., No. 16-147 (S.D. Cal., order entered December 13, 2016). Details about the dismissal of a similar case involving the same plaintiff appear in Issue 592 of this Update. The court held that the plaintiff had standing to sue based on the health effects of inflammation and organ damage associated with the consumption of PHO, noting that Kellogg’s response to the arguments focused on the insufficiency of speculative future risks for standing rather than the current effects. The court then turned to federal law governing the plaintiff’s claims and found that because PHO is currently permitted in food until June 2018, the plaintiff could not plausibly allege that Kellogg violated federal law. Further, her state law claims were preempted by…
A California federal court has granted the U.S. Department of Agriculture’s (USDA’s) motion for summary judgment in a case alleging the agency acted arbitrarily in denying a petition to prohibit foie gras produced from force-fed poultry. Animal Legal Def. Fund v. USDA, No. 12-4028 (C.D. Cal., order entered December 14, 2016). In the petition for rulemaking, several animal rights organizations and individuals argued force-feeding poultry caused hepatic lipidosis in the animals, rendering them unhealthy and unsafe for consumption; USDA’s Food Safety Inspection Service (FSIS) disagreed, finding that the buildup of fat from force-feeding did not make the liver unsafe to consume, unlike buildup related to disease. The court first determined that the Animal Legal Defense Fund and other plaintiff organizations had standing to sue, but the plaintiff individuals did not. Turning to the merits of the case, the court considered the plaintiffs’ three challenges to FSIS’s decision: (i) “its explanation for…
