A California federal court has confirmed its ruling that a plaintiff in a class action against Twinings North America cannot pursue her claim of unjust enrichment because it duplicates her consumer protection claims. Lanovaz v. Twinings N. Am., No. 12-2646 (N.D. Cal., order entered June 10, 2015). Details about the court’s previous rulings narrowing the claims and certifying an injunctive class appear in Issues 485 and 521 of this Update. In her complaint, the plaintiff alleged that Twinings misbranded its green, black and white teas as a “natural source of protective antioxidants” despite failing to meet U.S. Food and Drug Administration standards for nutrient content claims. The court certified an injunctive class but denied the plaintiff’s unjust enrichment claim. The plaintiff, seeking certification for a damages class through that claim, filed a motion for reconsideration arguing that the damages available through the unjust enrichment claim were different from the damages available via…
Category Archives 9th Circuit
In an amended complaint, a plaintiff has alleged that Campbell Soup Co.’s Prego® sauces contain canola oil with genetically modified organisms (GMOs) despite the products’ “100% Natural” label claims. Nelson v. Campbell Soup Co., No. 14-2647 (S.D. Cal., amended complaint filed June 8, 2015). The complaint asserts that 90 percent of canola crops in the United States are genetically modified, and because Campbell does not “undertake additional expensive steps to purchase and verify a supply from non-GMO growers,” the canola oil used in Prego® products includes GMOs. The plaintiff argues that a “reasonable California consumer, like Plaintiff, would not expect a Product labeled ‘100% Natural’ to contain ingredients made from genetically modified crops, which are, by definition, artificial and synthetic.” She seeks damages and attorney’s fees for her allegations of unfair competition and false advertising. Issue 568
A consumer has filed a putative class action against Diageo Americas Supply alleging that its Bulleit® bourbon is not produced in Lawrenceburg, Kentucky, as its label states. M’Baye v. Diageo Ams. Supply, Inc., No. 15-1216 (S.D. Cal., filed June 1, 2015). The complaint asserts that Diageo does not operate a distillery in Lawrenceburg and further alleges that Kirin Brewing Co., “a separate and distinct entity,” makes and distributes the bourbon. The plaintiff points to phrases in the bourbon’s marketing—”small batch,” “ingredients of the very highest quality” and “distinctively clean and smooth”—as evidence that the company intended to position it as a high-end product to justify its sale price of about $53. For allegations of false advertising, unfair competition and misrepresentation, the plaintiff seeks class certification, an injunction, restitution, damages and attorney’s fees. ssue 568
A California federal court has refused to dismiss a class action consolidated from nine lawsuits against PepsiCo, Inc. alleging that the company concealed its products’ content of 4-methylimidazole (4-MEI), a chemical listed as known to cause cancer or reproductive harm under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Sciortino v. Pepsico, No. 14-0478 (N.D. Cal., order entered June 5, 2015). The lawsuits were filed after a January 2014 Consumer Reports test reportedly found that the caramel coloring in PepsiCo sodas contained 4-MEI at levels higher than the Prop. 65 safety threshold of 29 micrograms. Details of a similar lawsuit dismissed in March 2015 requesting medical monitoring appear in Issue 557 of this Update. The court first discussed the notice requirements under Prop. 65, which require 60 days of notice of the alleged violation to government agencies to provide a “non-adversarial opportunity for public agencies to…
A ban on growing genetically modified organisms (GMOs) in Jackson County, Oregon, took effect on June 5, 2015, after a federal court refused to block the voter-approved statute at the request of alfalfa farmers who have grown GMO crops. Schultz Family Farms LLC v. Jackson Cty., No. 14-1975 (D. Ore., Medford Div., order entered May 29, 2015). The court noted that the issue of GMO farming encompasses several broad questions about the American food supply that it would not attempt to answer; its decision “is simply about the statutory construction of the Right to Farm Act, Jackson County Ordinance 635, and Oregon Senate Bill 863.” The court first describes Oregon’s Right to Farm Act, finding that “in the conflicts that arise between active, functioning farms and new, neighboring suburbanites, who inevitably find the farming practices loud, smelly, invasive, or simply irritating, the Oregon legislature has decided, as have many states,…
StarKist Co. and a class of consumers have filed a proposed settlement agreement for $12 million in a case alleging that the company underfilled its cans of tuna. Hendricks v. StarKist Co., No. 13-0729 (N.D. Cal., motion filed May 14, 2015). Under the agreement, StarKist will pay $8 million in $25 cash increments and provide $4 million in $50 vouchers for StarKist-branded products. The agreement indicates that “tens of millions of purchasers” are members of the class but predicts that “a claim rate of more than 5% will be difficult to achieve.” Thus, the amounts of the settlement allow for 80,000 voucher claims and 120,000 cash claims. “This is an excellent result for class members compared to their likely recovery should they prevail at trial,” the agreement stipulates. Issue 566
A California federal court has dismissed the claims in a putative class action alleging that Flowers Bakeries misrepresents its Nature’s Own® bread as natural, healthy and wholesome despite containing synthetic ingredients, including azodicarbonamide, the “yoga mat chemical.” Romero v. Flowers Bakeries, No. 14-5189 (N.D. Cal., San Jose Div., order entered May 6, 2015). The plaintiffs argued that the brand name “Nature’s Own,” pictures of “stalks of wheat and pots of honey” and statements such as “no artificial preservatives, colors and flavors” on the packaging of the products misleads consumers into believing that the products are “a natural food product, therefore connoting that [the products] are somehow more healthy and wholesome.” The court found deficiencies in the plaintiff’s complaint, noting that she failed to clarify which misrepresentation allegations applied to which products. “It is not the task of the Court or of Defendant to diagram the intersection between the challenged products…
A California man has filed purported class actions against Nestlé USA Inc. and General Mills Inc. claiming that both companies use trans fat in their products—specifically, General Mills’ baking mixes and Nestlé’s coffee creamers—despite the availability of acceptable alternative ingredients without trans fat. Backus v. Gen. Mills Inc., No. 15-1964 (N.D. Cal., filed April 30, 2015); Backus v. Nestle USA Inc., No. 15-1963 (N.D. Cal., filed April 30, 2015). Each complaint details the history and structure of partially hydrogenated oil (PHO), the products’ source of artificial trans fat. Plaintiff Troy Backus argues that the scientific consensus on PHO advises that “consumers should keep their consumption of trans fat ‘as low as possible’” because it allegedly causes cardiovascular disease, type 2 diabetes, cancer and other medical conditions. He also cites regulations limiting trans fats in California, New York City, Denmark and other jurisdictions as evidence that the substance is “inherently dangerous.”…
A California federal court has denied Boulder Brands, Inc.’s motion to dismiss a lawsuit alleging that the company misrepresents the cholesterol-blocking effect of the plant sterols in its Smart Balance® butter products because the amount of plant sterols is “not enough to generate a ‘clinically meaningful cholesterol blocking effect.’” Mitchell v. Boulder Brands, Inc., No. 12-1862 (S.D. Cal., order entered April 16, 2015). The court declined to reconsider its earlier decision that “the products’ labels could plausibly be read as implying a ‘clinically meaningful cholesterol blocking benefit’ and that this implied representation is ‘specific, measurable, and falsifiable.’” The expert report upon which the court has based its decision stated that a minimum of 800 milligrams of plant sterols—eight times the content in one serving of the Smart Balance® product—would be the minimum to meaningfully block cholesterol. Issue 563
A California federal court has granted in part and dismissed in part a motion to dismiss a putative consumer class action against The Hain Celestial Group alleging that the company mislabels its Sunflower Dream Drink as “all natural” despite containing artificial or synthetic ingredients, including xanthan gum and folic acid. Anderson v. The Hain Celestial Grp., Inc., No. 14-3895 (N.D. Cal., San Jose Div., order entered April 8, 2015). Hain challenged the plaintiff’s standing to sue for the alleged mislabeling of “substantially similar” products she did not personally purchase as well as standing for injunctive relief because she did not indicate that she would purchase Sunflower Dream Drink again. The court disagreed with the first argument, finding that the products the plaintiff did not purchase are substantially similar because they feature the same “all natural” representation and contain artificial, synthetic or extensively processed ingredients. Discussing the argument against standing for an…
