The Ninth Circuit Court of Appeals has affirmed a lower court’s decision that California cannot enforce its statute regulating the empty space between a product and its packaging against producers of meat and poultry products, finding that the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) preempt the statute. Del Real v. Harris, No. 13-16893 (9th Cir., order entered February 12, 2016). California Attorney General Kamala Harris appealed a district court’s permanent injunction barring enforcement of the slack-fill law against Del Real, which produces heat-and-serve meat and poultry products. The appeals court’s opinion cites precedent interpreting the FMIA and PPIA as creating a uniform national labeling standard. “When the FMIA and PPIA’s express preemption clauses are read in light of Congress’s concern for uniformity and a lesser level of regulation, it is unlikely that Congress intended for the states to be allowed to develop and apply…
Category Archives 9th Circuit
A consumer has filed a lawsuit against Kraft Heinz Foods Co. alleging the company sells its grated Parmesan as “100% Grated Parmesan Cheese” despite containing “significant amounts of adulterants and fillers,” including cellulose, or “wood pulp.” Lewin v. Kraft Heinz Foods Co., No. 16-0823 (N.D. Cal., filed February 18, 2016). The lawsuit comes in the wake of a Bloomberg Business article investigating the content of several leading companies’ grated-Parmesan products. The plaintiff alleges that the 3.8 percent of the product composed of cellulose precludes Kraft from labeling its cheese as “100% Grated Parmesan.” For allegations of misrepresentation, fraud and violations of California’s consumer-protection statutes, the plaintiff seeks class certification, damages and an injunction. For its investigation, Bloomberg hired a laboratory to test grated-Parmesan products for levels of cellulose, an additive often described as “wood pulp” approved for use in food in amounts up to 4 percent. The tests apparently found higher…
A California federal court has dismissed a lawsuit against Chipotle Mexican Grill Inc. alleging the company falsely advertises its food as free of genetically modified organisms (GMOs) despite selling meat and dairy produced from animals fed GMO products as well as soft drinks manufactured with GMO corn syrup. Gallagher v. Chipotle Mexican Grill, Inc., No. 15-3952 (N.D. Cal., order entered February 5, 2016). The plaintiff had failed to plausibly plead her allegations, the court found, because she failed to specify which products she purchased. Accordingly, the court granted Chipotle’s motion to dismiss but allowed the plaintiff leave to amend. Additional information about the complaint appears in Issue 577 of this Update. Meanwhile, a jury ordered Chipotle to pay $351,936 in back pay and $255,000 in punitive damages to three female former managers at restaurants near Cincinnati, Ohio, over allegations of gender discrimination. Rogers v. Chipotle Mexican Grill Inc., No. 13-0146…
A California federal court has dismissed portions of a lawsuit alleging that B&G Foods mislabeled its taco shells as containing “0g Trans Fat” despite the product’s use of partially hydrogenated oil as an ingredient. Walker v. B&G Foods, No. 15-3772 (N.D. Cal., order entered February 8, 2016). Five of the plaintiff’s seven claims involved alleged mislabeling of the taco shells as free of trans fat; the court disposed of the claims, finding that the Nutrition Labeling and Education Act required the trans fat level be listed as 0 grams if the content is less than one-half of a gram, thus preempting the claims. The court then turned to the non-labeling claims, through which the plaintiff argued the taco shells were unsafe for consumption based on the trans fat content and thus amounted to a breach of an implied warranty of merchantability and a violation of California’s Unfair Competition Law. Citing…
A consumer has filed a putative class action against Kellogg Co. alleging the company produces Mother’s Cookies® with partially hydrogenated oil (PHO), which contains trans fat, in violation of the U.S. Food and Drug Administration’s (FDA’s) ban on the ingredient. Hawkins v. Kellogg Co., No. 16-0147 (S.D. Cal., filed January 21, 2016). The plaintiff asserts FDA “determined that PHO is unsafe for use in food” in 2015, and alleges as a result that Kellogg is prohibited from using the food additive in its cookies. “Today there is no question about the scientific consensus on trans fat,” the complaint argues, in describing several studies examining the alleged human health effects of PHO consumption. For alleged violations of California consumer-protection statutes, nuisance and breach of implied warranty, the plaintiff seeks class certification, restitution, an injunction, a corrective advertising campaign and attorney’s fees. Issue 594
The Association of National Advertisers, Inc. (ANA) has filed an amicus brief in a case challenging San Francisco’s health code provisions requiring advertisements on sugar-sweetened beverages (SSBs) notifying the public of alleged health risks associated with SSB consumption. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., amicus brief filed January 22, 2016). The brief focuses on First Amendment arguments against requiring private parties to include government speech on their product labels. “The City of San Francisco’s imposition of the Warning Mandate in reaction to potential over-consumption of sugar-sweetened beverages by its citizens, whatever the merits of that concern, takes regulatory Nannyism to new levels and is wholly incompatible with First Amendment protections afforded to commercial speech,” the brief argues. “If this Court were to uphold the Board of Supervisors’ conscription of sugar-sweetened beverage ads to convey government views on health issues there would be virtually no limit to…
A California federal court has dismissed a lawsuit brought by People for the Ethical Treatment of Animals Inc. (PETA) alleging Whole Foods Market Inc. falsely advertises its meat as ethically slaughtered. PETA v. Whole Foods Mkt., Inc., No. 15-4301 (N.D. Cal., order entered January 29, 2016). The organization challenged Whole Foods’ five-step Global Animal Partnership rating as misleading consumers because the assessments are allegedly insufficient. Details on PETA’s complaint appear in Issue 579 of this Update. The court first found that PETA had standing to sue despite the organization’s not being a customer of Whole Foods. The court then turned to Whole Foods’ argument that PETA failed to plead its fraud allegations with the specificity required. The photos included with the complaint were insufficient to fulfill the requirement, the court found, because PETA did not clarify which aspects of the in-store displays were at issue. That vagueness also prevented the court…
A consumer has filed a putative class action against Kellogg Co. alleging the company produces Mother’s Cookies® with partially hydrogenated oil (PHO), which contains trans fat, in violation of the U.S. Food and Drug Administration’s (FDA’s) ban on the ingredient. Hawkins v. Kellogg Co., No. 16-0147 (S.D. Cal., filed January 21, 2016). The plaintiff asserts FDA “determined that PHO is unsafe for use in food” in 2015 and alleges as a result that Kellogg is prohibited from using the food additive in its cookies. “Today there is no question about the scientific consensus on trans fat,” the complaint argues, describing several studies examining the effects of PHO on the human body. For alleged violations of California consumer-protection statutes, nuisance and breach of implied warranty, the plaintiff seeks class certification, restitution, an injunction, a corrective advertising campaign and attorney’s fees. Issue 592
The Association of National Advertisers, Inc. (ANA) has filed an amicus brief in a case challenging San Francisco’s health code provisions requiring advertisements on sugar-sweetened beverages (SSBs) to notify the public of alleged health risks associated with SSB consumption. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., San Francisco Div., amicus brief filed January 22, 2016). The brief focuses on First Amendment arguments against requiring private parties to include government speech on their product labels. “The City of San Francisco’s imposition of the Warning Mandate in reaction to potential over-consumption of sugar-sweetened beverages by its citizens, whatever the merits of that concern, takes regulatory Nannyism to new levels and is wholly incompatible with First Amendment protections afforded to commercial speech,” the brief argues. “If this Court were to uphold the Board of Supervisors’ conscription of sugar-sweetened beverage ads to convey government views on health issues there…
A California federal court has dismissed a lawsuit against Costco Wholesale Corp. alleging the company’s shrimp was falsely advertised as adherent to a supplier code of conduct on human rights while the product was allegedly obtained through the use of slave labor. Sud v. Costco Wholesale Corp., No. 15-3783 (N.D. Cal., order entered January 15, 2016). The plaintiff argued that she was harmed because she purchased shrimp relying on Costco’s misrepresentation; the court disagreed after Costco provided records of the plaintiff’s and her mother’s purchases, which the company tracks through its membership program. Accordingly the court granted Costco’s motion to dismiss but allowed the plaintiff leave to amend. Details about the August 2015 complaint appear in Issue 576 of this Update. Issue 591
