Two lawsuits challenging the inclusion of “evaporated cane juice” (ECJ) on ingredient lists will continue in light of the U.S. Food and Drug Administration’s (FDA) July 2016 nonbinding guidance recommending that “sugar” be listed instead. A California federal court refused to dismiss a lawsuit against Lifeway Foods alleging its kefir product packaging misled consumers into believing it contained no added sugar by including ECJ in the ingredients list. Figy v. Lifeway Foods Inc., No. 13-4828 (N.D. Cal., order entered August 16, 2016). The court found the plaintiff’s claims to be properly pleaded and was not persuaded by Lifeway’s argument that the expiration dates on the labels attached to the complaint suggested that the products were purchased after the plaintiff knew what ECJ is because the labels were merely examples of the product packaging rather than the specific products the plaintiff purchased. Details about Lifeway’s motion to the court arguing the…
Category Archives 9th Circuit
A New Jersey federal court has transferred to California a lawsuit alleging that The Quaker Oats Co. misleads consumers with the packaging of its Maple & Brown Sugar oatmeal product because it does not contain maple syrup or maple sugar. Gates v. Quaker Oats Co., No. 16-1944 (D.N.J., order entered August 3, 2016). The complaint “makes essentially identical allegations against Quaker” as three other putative class actions pending in other federal courts, the court notes, including the first-filed case in California. The Judicial Panel on Multidistrict Litigation denied an Illinois plaintiff’s request to consolidate the cases into multidistrict litigation, but the panel suggested that the other parties transfer their lawsuits to California to streamline the process. Quaker moved to transfer the case from New Jersey to California, and the plaintiff did not oppose; accordingly, the court granted the motion to transfer. Issue 614
The Washington Legal Foundation (WLF) has filed an amicus brief with the Ninth Circuit Court of Appeals arguing the court should enjoin a San Francisco statute requiring advertisements of sugar-sweetened beverages (SSBs) to disclose health warnings related to their consumption. Am. Beverage Assoc. v. City of San Francisco, Nos. 16-16072 and 16-16073 (9th Cir., amicus brief filed August 4, 2016). The brief argues that the government cannot compel speech unless the speech is designed to dispel deception, and San Francisco has failed to show the warning prevents consumer deception. “The First Amendment protects not only the right to speak but also the right not to speak,” WLF Chief Counsel Richard Samp said in an August 4, 2016, press release. “In the absence of evidence that advertisements for sugar-sweetened beverages are deceiving consumers, soft drink manufacturers should not be required to include ominous health warnings in their ads.” Issue 613
The Ninth Circuit Court of Appeals has reversed a lower court’s grant of summary judgment in favor of Jim Beam Brands Co. in a lawsuit alleging the company infringes JL Beverage’s Johnny Love Vodka® trademarked logo, an image of puckered lips. JL Beverage Co. v. Jim Beam Brands Co., No. 13-17382 (9th Cir., order entered July 14, 2016). Details on the complaint appear in Issue 387 of this Update. Bottles of Johnny Love Vodka® feature the name of the brand with a set of puckered lips replacing the “O” in “Love,” which are then colored to represent the flavor of the alcohol. In 2010, Jim Beam Brands redesigned the Pucker® Vodka brand to emphasize a similar set of puckered lips and variety of colors alternated to coordinate with the flavor of the vodka. JL Beverage filed an infringement lawsuit after the company’s customers reported confusion about Pucker’s redesign; the district…
A California federal court has dismissed a claim of negligent misrepresentation in a lawsuit alleging that Safeway Inc. underfilled its tuna cans by 10 to 20 percent, according to testing conducted by the U.S. National Oceanic and Atmospheric Administration. In re Safeway Tuna Cases, No. 15-5078 (N.D. Cal., order entered July 13, 2016). Details about the complaint appear in Issue 584 of this Update. In a motion to dismiss, Safeway challenged the plaintiffs’ claims of unjust enrichment and negligent misrepresentation. The court dismissed arguments that unjust enrichment is not a cause of action in California, finding that the claim could be construed as a quasi-contract claim. Safeway also argued that the negligent misrepresentation claim was barred by the economic loss rule, which “requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise.” Because…
A California federal court has granted summary judgment to Pom Wonderful LLC in its trademark lawsuit against Pur Beverages Inc., which sells a pomegranate-flavored beverage under the name “Pur Pom.” Pom Wonderful LLC v. Hubbard, No. 13-6917 (C.D. Cal., order entered June 29, 2016). Pom filed a lawsuit alleging infringement of the “pom” mark, and Pur defended its use by arguing that Pom’s stylized use of the mark—a heart-shaped “O”—prevented Pom from claiming ownership of the non-stylized mark. The court disagreed, finding that the “stylized lettering does not alter the pronunciation or perception of the word; the standard character mark is both aurally and visually indistinguishable from the mark bearing a heart-shaped ‘O.’” Information about the Ninth Circuit decision reversing a lower court’s decision in favor of Pur Beverages appears in Issue 550 of this Update. Issue 610
A California federal court has granted preliminary approval for a settlement agreement in a lawsuit alleging PepsiCo products contain levels of 4-Methylimidazole (4-MEI) exceeding the legally permissible amount under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Sciortino v. PepsiCo Inc., No. 14-0478 (N.D. Cal., order entered June 28, 2016). Under the settlement, PepsiCo has agreed “to require its caramel coloring suppliers to meet certain 4-MeI levels in products shipped for sale in the United States, ensuring the 4-MeI concentration levels will not exceed the level of 100 parts per billion, and to test the covered products pursuant to an agreed protocol.” The court noted that the injunctive relief is the same as the agreement in an action brought by the Center for Environmental Health (CEH) alleging similar facts. “However, the Settlement Agreement will ‘enhance the CEH settlement by: (1) expanding the geographic scope of…
A California federal court has invalidated an amended section of the Organic Foods Production Act that allowed organic producers to use compost materials containing synthetic fertilizers, finding the U.S. Department of Agriculture (USDA) violated the Administrative Procedures Act (APA) by failing to subject the amendment to public notice and comment before it took effect. Ctr. for Envtl. Health v. Vilsack, No. 15-1690 (N.D. Cal., order entered June 20, 2016). Details about the complaint appear in Issue 562 of this Update. In 2011, USDA issued guidance on the agency’s position allowing the use of fertilizer and compost containing unapproved synthetic materials in the production of organic food. The plaintiffs, three environmental groups, argued that the guidance was a legislative rulemaking—thus triggering requirements of public notice and comment under the APA—while USDA asserted that it had merely clarified a preexisting rule, not changed it. The court sided with the environmental groups, finding the…
Following the release of U.S. Food and Drug Administration (FDA) final guidance finding that “evaporated cane juice” (ECJ) should be labeled as “sugar” on food products, Lifeway Foods has filed a motion arguing that the May 2016 rule should not affect the outcome of a consumer’s lawsuit against the company arguing it mislabeled its kefir smoothies. Figy v. Lifeway Foods Inc., No. 13-4828 (N.D. Cal., San Francisco Div., motion filed June 13, 2016). The case is one of many stayed or dismissed without prejudice awaiting FDA guidance after the agency announced it would reconsider the issue in March 2014. In its motion, Lifeway argues that the guidance is “intended to advise” and “does not establish any rights for any person and is not binding on the FDA or the public.” “The Guidance has no more bearing on Plaintiff’s claims under California’s consumer protection statutes than it has on his common…
A California federal court has granted voluntary dismissal to the plaintiff in a putative class action alleging P.F. Chang’s China Bistro Inc. discriminates against customers with a gluten allergy by adding a surcharge to gluten-free dishes. Phillips v. P.F. Chang’s China Bistro Inc., No. 15-0344 (N.D. Cal., San Jose Div., order entered June 6, 2016). The order granted dismissal to the plaintiff with prejudice but without prejudice as to the putative class, leaving the possibility that another plaintiff may step into the lead plaintiff role. The court also imposed the defendant’s costs on the plaintiff. Details on the complaint appear in Issue 555 of this Update. Issue 607
