Following a May 2016 refusal to invalidate a San Francisco regulation requiring warning labels on sugar-sweetened beverages (SSBs), a California court has granted an injunction on enforcement pending appeal. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., order entered June 7, 2016). Details on the May 2016 decision appear in Issue 605 of this Update, while additional information on the lawsuit appears in Issues 573, 586 and 592. The ordinance, set to take effect July 25, 2016, requires billboards and other public advertisements to include a warning that “[d]rinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.” The American Beverage Association (ABA) challenged the regulation on First Amendment grounds, but the court denied a preliminary injunction, finding the industry group’s claims unlikely to succeed. “[A]n injunction pending appeal may be appropriate, even if the Court believed its analysis in denying preliminary injunctive relief is…
Category Archives 9th Circuit
A consumer has filed a putative class action against Mondelez International Inc. alleging the company’s “Go-Paks,” packages of “mini” or “bite” versions of Nabisco cookie and cracker products, contain more than 25 percent slack-fill in violation of California law. Bush v. Mondelez Int’l Inc., No. 16-2460 (N.D. Cal., filed May 5, 2016). The “Go-Paks,” including Mini Chips Ahoy!, Mini Oreo and Ritz Bits varieties, are sold in opaque cups that do not indicate the quantities inside, the complaint asserts. The plaintiff argues that he relied on the cup’s size as a representation of the product he would be receiving and he would not have purchased the product had he known about the amount of slack-fill. For alleged violations of California consumer-protection statutes as well as breach of warranties, negligent misrepresentation, fraud and unjust enrichment, the plaintiff seeks class certification, an injunction, actual and punitive damages, attorney’s fees and costs. Issue…
A California federal court has denied the American Beverage Association’s (ABA’s) attempt to preliminarily enjoin the enforcement of a law requiring manufacturers of sugar-sweetened beverages (SSBs) to provide a warning about the alleged health risks associated with SSB consumption. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., order entered May 17, 2016). Further details about the lawsuit appear in Issues 573, 586 and 592 of this Update. The court first assessed the ABA’s argument that the law would burden noncommercial speech in addition to regulating commercial speech, which would trigger the highest level of scrutiny. ABA members’ communications to consumers are not limited to commercial speech, the organization argued, because they also publicize other messages, such as promotion for the Pride Parade and the Chinese New Year’s Festival. The court disagreed, finding the amount of noncommercial speech affected was not substantial. The court then reviewed whether…
Two strawberry breeders formerly of the University of California, Davis have filed a lawsuit against the university targeting its strawberry-breeding program, which they argue is denying them the opportunity to license the breeds they helped cultivate. Cal. Berry Cultivars LLC v. Regents of U. of Cal., No. 16-2477 (N. Cal., removed to federal court May 6, 2016). The scientists left the program in 2014 to start their own cultivation company with a former California secretary of food and agriculture. Their departure triggered a lawsuit from the California Strawberry Commission, which asserted the university was neglecting the program. The scientists now reportedly argue the university refuses to license—“on a non-exclusive basis at a reasonable royalty”—the plants to California Berry Cultivars to suppress competition, amounting to allegations of conversion, breach of contract, breach of faith, breach of fiduciary duty and unfair competition. Details about the settlement of the previous lawsuit appear in…
The Ninth Circuit Court of Appeals has affirmed a dismissal of a consumer lawsuit against Costco Wholesale Corp. alleging mislabeling claims against VitaRain Tropical Mango Vitamin Enhanced Water Beverage. Maple v. Costco Wholesale Corp., No. 13-36089 (9th Cir., order entered May 9, 2016). The plaintiff had alleged the product was mislabeled because the product contains added caffeine, precluding the use of “natural” on the label. The district court dismissed the case because the plaintiff did not read the label before purchasing it; on appeal, the plaintiff asserted that he could amend the complaint to add “a subclass of plaintiffs who did read the relevant parts of the label.” Because he did not rely on the label, the plaintiff’s claim failed, and “the potential existence of other classes of which Plaintiff is not a member is irrelevant,” the court found. Further, the “district court abused its discretion by dismissing the action…
A consumer has filed a putative class action against The Quaker Oats Co. alleging the company falsely advertises its oatmeal products as “100% natural” because it contains the herbicide glyphosate. Cooper v. Quaker Oats Co., No. 16-2364 (N.D. Cal., San Francisco Div., filed April 29, 2016). The plaintiff argues the cancer-research arm of the World Health Organization declared glyphosate—”a potent and unnatural biocide” that the company sprays on oats as a drying agent, according to the complaint—to be a “probable human carcinogen” in 2015. The complaint admits the use of glyphosate is legal but asserts that its use in combination with a “100% natural” claim amounts to misrepresentation. For allegations of breach of warranty and violations of California’s consumer-protection statutes, the plaintiff seeks class certification, a compelled corrective advertising campaign, damages, restitution and attorney’s fees. Issue 603
A California federal court has dismissed a lawsuit brought by People for the Ethical Treatment of Animals (PETA) alleging Whole Foods Market Inc. misrepresents its meat products as humanely slaughtered with its Global Animal Partnership (GAP) 5-Step® Rating System. PETA v. Whole Foods Mkt. Cal., Inc., No. 15-4301 (N.D. Cal., order entered April 26, 2016). Details about the complaint appear in Issue 579 of this Update, while information about a previous dismissal without prejudice appears in Issue 593. The plaintiffs asserted that Whole Foods’ GAP rating system is a ”‛sham’ that is not actually enforced and the advertisements do not adequately disclose that ‘key animal treatment standards’ under the GAP rating ‘are no better or marginally better than is the common industry practice,’” according to the court. Whole Foods filed a motion to dismiss the case arguing that the plaintiffs failed to allege misrepresentations or an actionable omission under California law, and…
A consumer has filed a proposed class action against Vigo Importing Co. alleging its octopus product is actually jumbo squid, “which is significantly cheaper and of a lower quality than octopus.” Fonseca v. Vigo Importing Co., No. 16-2055 (N.D. Cal., San Jose Div., filed April 19, 2016). The complaint details each animal’s taxonomy within the animal kingdom and describes the current populations of each—octopus populations “have dwindled around the world due to over-fishing,” while “jumbo squid populations have been thriving” because of the squid’s “ability to adapt to changing ocean conditions caused by global warming.” As a result, “the cost of octopus has risen dramatically compared to the cost of squid,” and “due to similarities in texture, squid can easily be substituted for octopus without the consumer being able to tell the difference particularly when sold in a sauce like garlic sauce or marinara sauce.” The plaintiff argues that independent…
A consumer has filed a putative class action against Campbell Soup Co. alleging the company misrepresents its Healthy Request gumbo soup as “healthy” despite containing trans fat. Brower v. Campbell Soup Co., No. 16-1005 (S.D. Cal., filed April 25, 2016). Campbell has branded itself as “one of the world’s leading providers of healthy and nutritious foods,” the complaint asserts, in part by establishing a research group, Campbell’s Center for Nutrition & Wellness, and obtaining “heart-check” certification from the American Heart Association (AHA) for some of its products. Despite its marketing, Campbell adds “partially hydrogenated soybean oil, containing artificial trans fat, to Healthy Request Gumbo,” the plaintiff argues. The complaint details health risks reportedly linked to the consumption of trans fat, including increased risks of cardiovascular ailments, type 2 diabetes and Alzheimer’s disease. The “statements, images, and emblems” appearing on Healthy Request Gumbo’s label—the “Healthy Request” branding, “heart healthy” claim, vignettes of…
A California federal court has dismissed a lawsuit alleging Kraft Heinz Food Co. mislabels its Heinz sauces as manufactured in the United States despite containing ingredients sourced outside the country, including turmeric, tamarind extract and jalapenos. Alaei v. Kraft Heinz Food Co., No 15-2961 (S.D. Cal., order entered April 22). The complaint failed to meet the heightened pleading standards associated with fraud claims, the court found, in part because she did not allege that the Heinz 57® sauce she bought contained any specific ingredients of foreign origin. Further, she could not have standing to assert misrepresentation claims against products she did not purchase without arguing the other sauces were substantially similar to Heinz 57®. Accordingly, the court granted Kraft’s motion to dismiss but allowed the plaintiff leave to amend. Additional information on the complaint appears in Issue 589 of this Update. Issue 602
