An Oregon federal court has dismissed a lawsuit alleging Gerber’s Graduates® Puffs is mislabeled because its packaging displays fruits and vegetables not contained in the product. Henry v. Gerber Prods. Co., No. 15-2201 (D. Ore., order entered April 18, 2016). The court first denied the plaintiff’s request to remand the case to state court, then turned to Gerber’s motion to dismiss the claims based on preemption by the federal Food, Drug, and Cosmetic Act. Gerber argued that U.S. Food and Drug Administration (FDA) regulations allow the company to provide visual depictions of the product’s “‛characterizing flavor,’ even if the product does not actually contain any of the depicted fruit, or indeed any fruit at all.” The court agreed, finding that the law is “clear,” even if the “wisdom of the FDA’s regulations on this topic is a different question for a different day.” The court dismissed the case but granted…
Category Archives 9th Circuit
A California federal court has dismissed a lawsuit alleging that Diageo PLC misrepresents Red Stripe® beer as brewed in Jamaica, finding “no reasonable consumer would be misled into thinking that Red Stripe is made in Jamaica with Jamaican ingredients based on the wording of the packaging and labeling.” Dumas v. Diageo PLC, No. 15-1681 (S.D. Cal., order entered April 6, 2016). Details about the complaint appear in Issue 574 of this Update. Bottle trays for six and 12-packs of Red Stripe® include, as the court explained, “the language ‘Jamaican Style Lager and ‘The Taste of Jamaica,’” the Diageo-Guinness USA logo and a disclaimer on the bottom of the packaging that states, “Brewed and bottled by Red Stripe Beer Company Latrobe, PA.” Citing a Second Circuit opinion finding that the description of a knife as a “Swiss Army knife” does not imply it was made in Switzerland, the court found that the “mere…
A California federal court has granted The Kroger Co.’s motion to dismiss a lawsuit alleging the company’s breadcrumbs product includes partially hydrogenated oil, which contains trans fat, despite labeling the product as “0g Trans Fat.” Hawkins v. Kroger Co., No. 15-2320 (S.D. Cal., order entered March 17, 2016). The court found that the mislabeling claims failed for two reasons. First, a challenge to a “0g Trans Fat” labeling claim is preempted, the court said, because U.S. Food and Drug Administration regulations require that foods with less than one-half of a gram of trans fat be labeled as “0g.” Second, the plaintiff failed to prove actual reliance on the allegedly deceptive statements, the court found, rejecting her argument that she “is a busy person and cannot reasonably inspect every ingredient of every food that she purchases” despite having bought the bread crumbs six times per year for 15 years but only noticing…
A California federal court has refused to certify a class of consumers alleging that R.C. Bigelow Inc. misled them by over-representing the amount of antioxidants contained in its green tea. Khasin v. R.C. Bigelow, Inc., No. 12-2204 (N.D. Cal., order entered March 29, 2016). The court previously refused to allow the plaintiff to seek financial records to calculate damages. Additional details appear in Issue 575 of this Update. In its certification analysis, the court found fault with the plaintiff’s three suggested damages models: (i) a restitution calculation, (ii) statutory damages or (iii) a nominal alternative. The plaintiff argued that the restitution calculation model should amount to payments of the full purchase price of the product because the tea is allegedly “legally worthless” for failing to meet U.S. Food and Drug Administration requirements on antioxidant nutrient claims. The court refused to find that consumers received no benefit from drinking the tea, “in…
Food and Water Watch, the Center for Food Safety, Friends of the Earth and other consumer and environmental groups have filed a lawsuit against the U.S. Food and Drug Administration (FDA) arguing the agency approved the use of genetically engineered (GE) salmon AquaBounty for human consumption without properly investigating related environmental risks. Inst. for Fisheries Res. v. Burwell, No. 13-1574 (N.D. Cal., filed March 30, 2016). The complaint alleges that AquaBounty received approval for two facilities only but has told its investors that it will expand in 2016; the organizations assert that FDA should have investigated the environmental effects of AquaBounty’s “necessary outgrowth” rather than limiting its analysis to the effects of two facilities. The complaint further alleges that FDA “failed to consult with the federal fish and wildlife agencies to insure that its approval for AquaBounty’s application was not likely to jeopardize endangered and threatened species or adversely modify…
Several consumer organizations, including the Center for Food Safety, Environmental Working Group and Natural Resources Defense Council, have filed a petition for a writ of mandamus in the U.S. Court of Appeals for the Ninth Circuit seeking a writ compelling the U.S. Food and Drug Administration (FDA) to address the groups’ administrative petition filed in December 2014. Breast Cancer Fund v. FDA, No. 16-70878 (9th Cir., petition filed March 31, 2016). FDA missed a June 2015 deadline to respond to the groups’ petition, which implored FDA to rescind foodcontact approval for perchlorate, “an endocrine-disrupting chemical that interferes with the thyroid gland” used in food packaging. “Perchlorate is primarily used in rocket fuel. There is no reason FDA should allow a chemical like this in or on food products,” Andrew Kimbrell, executive director of Center for Food Safety, said in a March 31, 2016, press release. “It is irresponsible, illegal, and…
A consumer has filed a lawsuit alleging that Chipotle Mexican Grill Inc. falsely advertised its food as free of genetically modified organisms (GMOs) despite serving meat products from animals fed GMOs and soft drinks that contain GMO corn syrup. Pappas v. Chipotle Mexican Grill, Inc., No. 16-0612 (S.D. Cal., filed March 10, 2016). The plaintiff alleges violations of California's consumer-protection law and seeks class certification, damages, an injunction, and attorney's fees. The complaint echoes the arguments in a similar California case dismissed without prejudice in February 2016 finding that the plaintiff's definition of GMO was inconsistent. The plaintiff has filed an amended complaint arguing that consumers "reasonably understand today that such claims would mean that Chipotle's menu is 100% free of GMOs and that Chipotle does not serve food sourced from animals that have been raised on GMOs or genetically engineered food." Gallagher v. Chipotle Mexican Grill, Inc., No. 15-3952…
A California federal court has dismissed a proposed class action against Nestlé USA, Inc. alleging that its Coffee-Mate creamer products are mislabeled because they include partially hydrogenated oil (PHO), which contains trans fat, despite listing “0g Trans Fat” on its labels. Backus v. Nestlé USA, Inc., No. 15-1963 (N.D. Cal., order entered March 8, 2016). The court first agreed with Nestlé’s argument that the plaintiff’s three use claims—those arguing that the company’s use of PHO makes it liable for damages to consumers—were preempted by the federal Food, Drug, and Cosmetic Act (FDCA) and the U.S. Food and Drug Administration’s (FDA’s) compliance schedule for removing trans fat from food by June 18, 2018. The court then turned to the labeling claims, which Nestlé also argued were preempted by the FDCA, as amended by the Nutrition Labeling and Education Act, which established that a company must list the trans fat content of…
A California federal court has again denied certification in a putative consumer class action challenging Yakult USA’s probiotic yogurt product for allegedly false digestive-health claims. Torrent v. Yakult USA, Inc., No. 15-0124 (C.D. Cal., S. Div., order entered March 7, 2016). Additional information about the previous denial of certification appears in Issue 589 of this Update. In its prior denial, the court found the plaintiff was unlikely to purchase the product again, thus he lacked standing to pursue an injunction. Following this ruling, the plaintiff purchased Yakult at a store, then refiled his motion for class certification along with a sworn declaration that “I intend to buy Yakult in California in the future.” The court found the refiled motion to be “an effort to manufacture standing in direct response to this Court’s prior ruling.” Allowing the plaintiff “to seek injunctive relief based on his recently-expressed intention to purchase Yakult in the…
A California federal court has rejected a May 2015 settlement agreement reached by StarKist Co. and a class of consumers who alleged the company underfilled its cans of tuna. Hendricks v. StarKist Co., No. 13-0729 (N.D. Cal., order entered February 19, 2016). The court identified two issues with the settlement: (i) the notice sent to class members did not notify the class of the amended release of future claims, so the settlement notice was inadequate; and (ii) the scope of the original and amended releases violates the identical factual predicate rule. Specifically, the release was too broad because it released StarKist from claims relating to any purchase of StarKist products rather than limiting it to a release from claims related to the purchase of underfilled StarKist tuna products. Details about the settlement agreement appear in Issue 566 of this Update. Issue 595
