A California federal court has dismissed a lawsuit against Trader Joe’s Co. alleging the retailer’s soy milk is mislabeled because it does not contain cow’s milk, which the plaintiffs argued amounts to a violation of the federal Food, Drug, and Cosmetic Act and California’s consumer protection statute. Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., order entered December 1, 2015). “Often in food labeling cases,” the court noted, “courts jump straight to the question of whether a plaintiff may state a claim under California’s Unfair Competition Law. But there is a threshold question.” The court explained that questions related to food labeling must be considered in the context of the federal Food, Drug, and Cosmetic Act because “if the alleged conduct would not violate the federal statute, it doesn’t matter whether the plaintiff could pursue a state law claim based on that conduct. If a food label does not…
Category Archives 9th Circuit
Safeway Inc. will pay $41.9 million to customers who ordered groceries online and were charged a 10 percent markup on the items they ordered compared to the prices charged in-store, a court has confirmed. Rodman v. Safeway Inc., No. 11-3003 (N.D. Cal., order entered November 30, 2015). A California federal court approved the settlement amount of $31 million in damages and $10.9 million in prejudgment interest. Additional details about the case appear in Issues 549 and 577 of this Update. Issue 587
A California federal court has dismissed a putative class action alleging Nestlé USA Inc. violates state laws about notifying consumers of products sourced from forced labor because of Nestlé’s partnership with a company accused of using slave labor to catch and supply its fish. Barber v. Nestlé USA Inc., No. 15-1364 (C.D. Cal., order entered December 9, 2015). The plaintiffs asserted that some of Nestlé’s Fancy Feast® cat food products include fish supplied by Thai Union Frozen Products, which acknowledges that some of its smaller fishing boats use forced labor, but “it is virtually impossible to say how pervasive the problem is,” according to the court. Nestlé argued the plaintiffs’ claims were barred by the safe harbor doctrine created by the California Transparency in Supply Chains Act of 2010, which “requires any retailer who does business in California and has annual worldwide gross receipts exceeding $100 million to make specific disclosures…
The Ninth Circuit Court of Appeals has ruled that the Animal Legal Defense Fund (ALDF) can sue the U.S. Department of Agriculture (USDA) for its Food Safety and Inspection Service’s denial of a petition for rulemaking on prohibiting force-fed foie gras. Animal Legal Def. Fund v. U.S. Dep’t of Agric., No. 13-55868 (9th Cir., order entered December 7, 2015). The district court had dismissed the action sua sponte after determining the denial was equivalent to a non-enforcement decision and thus not reviewable by the court. The appeals court described two exceptions that limit when an individual can challenge a final agency decision in court under the Administrative Procedure Act (APA), finding the district court had erred in determining the foie gras denial fell into one of the exceptions. The court distinguished “agency decisions not to take enforcement actions,” which cannot be subjected to judicial review and involve past breaches of existing…
Two consumers have filed a putative class action alleging that two lines of kombucha manufactured by Millennium Products and sold by Whole Foods Market contain several defects, including levels of alcohol higher than the label represents and packaging inadequate to properly accommodate the product’s secondary fermentation. Pedro v. Millennium Prods., Inc., No. 15-5253 (N.D. Cal., filed November 17, 2015). Millennium’s kombucha, a fermented tea product, is sold in two lines—a “Classic” line requiring the purchaser to be 21 years old and an “Enlightened” line containing “a trace amount of alcohol” but insufficient amounts to require identification upon purchase (less than 0.05 percent alcohol by volume). The plaintiffs allege that both lines contain more alcohol than the label indicates, which allegedly caused one plaintiff to become sick and experience “among other things, trouble breathing, and increased heart rate.” The plaintiffs further allege the byproduct of kombucha’s fermentation, carbon dioxide, builds up…
A California federal court has granted a motion to dismiss claims that La Tapatia Tortilleria mislabels its food as containing no trans fats despite containing partially hydrogenated oil (PHO) based on the finding that the plaintiff cannot claim he relied on the product packaging because he is the plaintiff in several similar lawsuits, showing he had sufficient knowledge to determine whether the product contained trans fats before purchasing. Guttmann v. La Tapatia Tortilleria, Inc., No. 15-2042 (N.D. Cal., order entered November 18, 2015). The plaintiff alleged he relied on the “0g Trans Fat” representation on La Tapatia’s tortilla packaging when purchasing, then later learned the product contained trans fat. He, however, “was amply aware, given his litigation history: (1) that products labeled as “0g Trans Fat” may in fact contain small amounts of trans-fat; (2) that FDA regulations do not require trans-fat content to be declared in the nutrition-facts panel…
A California federal court has dismissed a proposed class action against Plum Organics alleging that large photos of fruits and vegetables on the company’s Mighty 4® Children’s Food product packaging mislead consumers into believing the products contain significant amounts of those fruits and vegetables. Workman v. Plum Inc., No. 15-2568 (N.D. Cal., filed November 2, 2015). The court refused to find that the mere inclusion of the pictures constituted misrepresentation. “The products at issue do not display any affirmative misrepresentations,” the court said. “They merely show pictures of featured ingredients contained in the puree pouch and fruit bars. No reasonable consumer would expect the size of the flavors pictured on the label to directly correlate with the predominance of the pictured ingredient in the puree blend.” In October 2015, Plum announced it would change its marketing, including product names, to better reflect the contents of its products. Additional information appears…
A California federal court has remanded a putative class action against Gerber Products Co. on the labeling of its Gerber® Graduates® Puffs to state court and declined to admit sales data into evidence on hearsay grounds. Gyorke-Takatri v. Nestle USA, Inc., No. 15-3702 (N.D. Cal., order entered November 6, 2015). The plaintiffs allege Gerber misleads consumers with its Graduates® Puffs marketing by implying the products are healthy with “vibrant images of fruits and vegetables on the outside of the Puffs’ packaging.” Gerber argued that the amount in controversy was more than $5 million and thus sufficient to justify federal court jurisdiction. The plaintiffs argued that the court should not consider the total retail sales of Puffs, which Gerber says is well over the $5 million threshold, because the data Gerber used to reach those numbers was gathered from Nielsen, a third party. The court agreed, finding that the third-party data…
A California consumer has filed a putative class action against Safeway Inc. alleging the grocery retailer’s tuna cans are under-filled by 10 to 20 percent based on federally mandated fill standards. Soto v. Safeway Inc., No. 15-5078 (N.D. Cal., filed November 5, 2015). The plaintiff contends that U.S. National Oceanic and Atmospheric Administration (NOAA) testing indicates Safeway’s 5-ounce tuna cans contain an average of 2.29 ounces of pressed cake tuna despite federal standards requiring cans of that size to contain at least 2.84 ounces of product. This result was consistent across 97.9 percent (94 of 96) of the tuna cans analyzed, according to the complaint. The plaintiff alleges breach of warranties, fraud, unjust enrichment, negligent misrepresentation and violations of California’s consumer protection statutes, and he seeks class certification, compensatory and punitive damages, an injunction and attorney’s fees. Issue 584
The Animal Legal Defense Fund (ALDF) has filed a lawsuit against the U.S. Department of Agriculture (USDA) alleging a violation of the Administrative Procedure Act (APA) based on USDA’s lack of response to ALDF’s 2011 rulemaking petition requesting mandatory labeling on foie gras produced through the forced feeding of ducks or geese. Animal Legal Def. Fund v. U.S. Dep’t of Agric., No. 15-5063 (N.D. Cal., San Francisco Div., filed November 5, 2015). ALDF argues that force-fed foie gras products are mislabeled because USDA certifies them as “[i]nspected for wholesomeness” despite the fact that force-feeding “induces a metabolic disease and commonly results in the onset of all of the conditions mentioned in [USDA’s Poultry Products Inspection Act].” The organization seeks a declaration that USDA has violated the APA and an injunction compelling the agency to substantively respond to the petition. “The USDA is responsible for ensuring that all poultry products that…
