The American Beverage Association (ABA) has partnered with California retail and advertising associations to challenge San Francisco ordinances requiring warning labels on sugar-sweetened beverage (SSB) advertisements and prohibiting advertisements of such products on city property. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., filed July 24, 2015). ABA argues that the ordinances violate the First Amendment, which “forbids the City from conscripting private speakers to convey [the city’s viewpoint] while suppressing conflicting viewpoints on this controversial topic.” The complaint first details ad prohibition on city property, including transportation and parks, while it “explicitly permits advertisements that criticize sugar-sweetened beverages or encourage people to stop drinking them. The First Amendment flatly forbids such government-imposed viewpoint discrimination.” The second component of the ordinance prohibits all producers of SSBs “from using their names on any City property to promote any product or any non-charitable event, no matter whether commercial, athletic, musical,…
Category Archives 9th Circuit
A California federal court has dismissed claims challenging the trans fats labeling of Nissin Foods Co. Inc.’s Cup Noodles® but allowed to continue allegations that the use of partially hydrogenated oil (PHO) violates California law. Guttmann v. Nissin Foods (U.S.A.) Co., Inc., No. 15-0567 (N.D. Cal., order entered July 15, 2015). The plaintiff challenged the Cup Noodles label, which indicated that the product contained “Trans Fat: 0g,” despite including PHO among its ingredients. Nissin argued that the U.S. Food and Drug Administration (FDA) dictates that the nutritional panel lists an ingredient as zero grams if its actual content is less than one-half of a gram, and Nissin’s compliance with that mandate could not create misleading labels. The court looked to a 2010 case with the same plaintiff challenging Quaker Oats Co.’s label on similar grounds. According to the court, the decision in that case determined that “if the FDA had…
A California federal court has dismissed a putative class action against Maker’s Mark Distillery, Inc. alleging that its whiskey is mislabeled as “handmade” because it uses machines to produce the product. Nowrouzi v. Maker’s Mark Distillery, Inc., No. 14-2885 (S.D. Cal., order entered July 27, 2015). Additional information about the complaint appears in Issue 548 of this Update. The court first denied the distillery’s motion to dismiss on safe harbor grounds, finding that the record is unclear as to whether “handmade” claims fall within the purview of the Tobacco Tax and Trade Bureau. The decision then turned to whether the public would likely be deceived by the “handmade” label. Maker’s Mark cited a May 2015 decision in a similar lawsuit finding that a reasonable person would understand that “handmade” is not meant to indicate that substantial equipment was not used in production, and the court found the reasoning persuasive. “This…
A California federal court has denied Gerber Products Co.’s attempt to dismiss a false advertising lawsuit about the company’s Good Start® Gentle based on the reasoning in a June 2015 Fourth Circuit decision that significantly changed the law. Zakaria v. Gerber Prods. Co., No. 15-0200 (C.D. Cal., order entered July 14, 2015). The June decision found that, “so long as there is a ‘reasonable difference of scientific opinion’ as to the merits of a manufacturer’s health claim, the alleged actual falsehood of that health claim cannot be the basis for a cause of action under several consumer protection laws.” In re GNC Corp., No. 14-1724 (4th Cir., order entered June 19, 2015). After the court denied its motion to dismiss on June 18, Gerber filed for reconsideration, arguing that In re GNC “has changed the law of false advertising.” The court, noting that the Fourth Circuit decision was not binding…
Finding a lack of standing, a California federal court has dismissed the named plaintiffs of a putative class action against Safeway alleging that the company should have notified customers who purchased dangerous products through information gathered from its loyalty-card program. Hensley-Maclean v. Safeway, Inc., No. 11-1230 (N.D. Cal., order entered June 29, 2015). Details about the court’s refusal to dismiss the case before discovery appear in Issue 398 of this Update. After proceeding through discovery, Safeway apparently learned that none of the plaintiffs had purchased any products subject to Class I recalls, which occur “when there is a reasonable probability that use of the product will cause serious, adverse health consequences or death.” The two named plaintiffs had argued that Safeway should have notified them about recalls of Nutter Butter® Sandwich Cookies and Lucerne® eggs, but later examination revealed that their purchases were not part of any Class I recalls.…
A Hawaii federal court has ruled that a Maui ban on genetically modified organisms (GMOs) is preempted by the Plant Protection Act and therefore invalid. Robert Ito Farm, Inc. v. Cty. of Maui, No. 14-0582 (D. Haw., order entered June 30, 2015). The decision begins with an introduction clarifying that the court recognizes the importance of the questions of whether GMOs pose risks, noting, “This order is not an attempt by this court to pass judgment on any benefit or detriment posted by [genetic engineering (GE)] activities or GMOs.” The Maui prohibition on GMO cultivation or propagation passed in November 2014 and supporters of the initiative filed a lawsuit for a declaratory judgment shortly thereafter. Detractors then filed a lawsuit the following day seeking to invalidate the ban. After disposing with preliminary motions filed by a supporter organization, Shaka Movement, the court turned to the issue of preemption. The federal…
A consumer has filed a putative class action alleging that Capri Sun®, a product of Kraft Foods Group, is misleadingly represented as “natural” because it contains citric acid and “natural flavor.” Osborne v. Kraft Foods Grp., Inc., No. 15-2653 (N.D. Cal., filed June 12, 2015). The complaint asserts that citric acid is created synthetically through the fermentation of glucose, while “natural flavor” is made of “unnatural, synthetic, artificial and/or genetically modified ingredients,” so neither ingredient should be part of a “natural”-labeled product. Kraft charged a premium for Capri Sun® based on that label, the plaintiff argues, and deceived consumers into relying upon that label misrepresentation when purchasing. She seeks class certification, an injunction, damages and attorney’s fees for alleged negligent misrepresentation and violations of California’s consumer-protection statutes. Issue 570
A California federal court has certified a class of consumers challenging the “natural” label on Kraft’s fat-free cheddar cheese product but limited the class only to consumers who relied on that labeling when purchasing the product. Morales v. Kraft Foods Grp., Inc., No. 14-4387 (C.D. Cal., order entered June 23, 2015). The complaint had asserted that artificial coloring in the product precluded Kraft from labeling the cheese as “natural.” The court found that the proposed class met the numerosity, commonality, typicality and adequacy of representation standards, then focused on whether the common issues predominate over any individual issues. Kraft argued that the plaintiffs could not show that every member of the proposed class relied upon the “natural” representation because the term “natural” may mean different things to different people. The court disagreed but noted that Kraft could make that argument later in the legal process. Kraft also challenged the ascertainability of…
The U.S. Supreme Court has ruled that a provision in the Agricultural Marketing Agreement Act of 1937, a U.S. Department of Agriculture program that regulates U.S. production and sales of raisins, amounts to a constitutional taking and requires just compensation to plaintiffs and other raisin farmers. Horne v. USDA, No. 14-275 (U.S., decided June 22, 2015). The decision focused on whether a taking of personal property (here, the raisins) fell under the Fifth Amendment of the U.S. Constitution, which requires just compensation and has historically applied to real property such as land. The majority opinion, delivered by Chief Justice John Roberts, began by detailing the program, which required raisin farmers to turn over a portion of their crop yields each year to avoid oversaturating the market and causing a drop in raisin prices. The government then used those yields in social programs like school lunches or sold them overseas. The…
A consumer has filed a putative class action against H.J. Heinz Co. alleging that the company’s frozen microwave French fries and tater tots contain partially hydrogenated oil (PHO), which contains artificial trans fat, despite packaging that indicates the products contain “0g trans fat.” Backus v. H.J. Heinz Co., No. 15-2738 (N.D. Cal., filed June 18, 2015). The complaint asserts that any intake of trans fat is unsafe and cites the U.S. Food and Drug Administration’s June 16, 2015, final determination that PHOs are not generally recognized as safe for any human food. The complaint further argues that the artificial trans fats in PHO cause several medical conditions such as cardiovascular disease, type 2 diabetes and Alzheimer’s disease. The plaintiff alleges violations of California unfair competition, false advertising and consumer legal remedies statutes and seeks class certification, damages, disgorgement of benefits, an injunction, and attorney’s fees. Issue 569
