The Center for Food Safety, Center for Environmental Health and Beyond Pesticides have filed a lawsuit against the leaders of the U.S. Department of Agriculture (USDA), Agricultural Marketing Service and National Organic Program (NOP) arguing that USDA failed to allow public comments on a contaminated compost rule before issuing a guidance document on the subject. Ctr. for Envtl. Health v. Vilsack, No. 15-1690 (N.D. Cal., filed April 14, 2015). The 2011 guidance at issue allows organic producers to use compost materials treated with pesticides. According to the complaint, “NOP regulations expressly prohibit fertilizers and compost from containing any synthetic substances not included on the National List” of approved exceptions, but the Contaminated Compost decision “contravened that legal requirement, purporting to establish that organic producers may in fact use these contaminated plant and animal materials in compost under certain circumstances.” The decision was never subject to public comment, the plaintiffs argue,…
Category Archives 9th Circuit
Days after the U.S. Food and Drug Administration (FDA) released a March 2015 letter warning Kind LLC against using the word “healthy” to describe several of its products, a consumer filed a class action against the company alleging negligent misrepresentation and violations of California consumer protection statutes. Kaufer v. Kind LLC, No. 15-2878 (C.D. Cal., filed April 17, 2015). The FDA Warning Letter listed the packaging of several products that an agency investigation apparently determined violated the Federal Food, Drug, and Cosmetic Act because the products’ nutrient contents do not meet federal requirements to be described as “healthy.” The letter also warned Kind against the use of “+” or “plus” as well as “No Trans Fats.” The putative class action complaint cites the FDA letter, arguing that the “healthy,” “+” or “plus” and “no trans fats” claims mislead consumers into believing that they are purchasing a healthful product. The plaintiff…
Several policy groups, including Food & Water Watch and the Center for Food Safety, have filed a lawsuit challenging a U.S. Department of Agriculture (USDA) procedural change in how ingredients are removed from the National List, a list of synthetics exempted from the Organic Foods Production Act (OFPA). Ctr. for Food Safety v. Vilsack, No. 15-1590 (N.D. Cal., filed April 7, 2015). The National List catalogs synthetic and prohibited natural substances that may be used in organic farming despite not being inherently organic because the substances (i) have been determined by USDA not to harm human health or the environment, (ii) cannot be replaced with an organic alternative and (iii) are consistent with organic farming and handling. The groups challenge a 2013 revision to the process for removing an exempted substance from the National List. OFPA created a sunset provision that removed substances from the list—thereby prohibiting their use in…
A California federal court has granted Hershey’s motion for summary judgment in a lawsuit originally alleging that the company mislabels its Kisses®, cocoa products and Ice Breakers® mints with respect to healthy diet claims, sugar-free claims, serving sizes, and the content of antioxidants, nutrients, vanillin, and polyglycerol polyricinoleic acid. Khasin v. The Hershey Co., No. 12-1862 (N.D. Cal., order entered March 31, 2015). The claims were previously cut to a single unfair competition claim over the use of the statement “natural source of flavanol antioxidants” on dark chocolate and cocoa products. Additional information about these rulings appears in Issues 463 and 523 of this Update. The plaintiff argued that Hershey’s claim implied that flavanol antioxidants conferred health benefits, despite evidence showing no such benefit. He failed to prove that the statement in question would be likely to mislead reasonable consumers, the court said. The plaintiff “testified in his deposition that Hershey’s products…
A California federal court has approved the proposed settlement in a class action alleging that Jamba Juice® mislabels its smoothie kits as “all natural” despite containing synthetic ingredients gelatin, xanthan gum, ascorbic acid, steviol glycosides, and modified corn starch. Lilly v. Jamba Juice Co., No. 13-2998 (U.S. Dist. Ct., N.D. Cal., settlement approved March 18, 2015). The December 2014 proposed settlement was reached three months after the court certified the class for liability but not for damages. Under the agreement, Jamba Juice® will remove “all natural” on the product packaging and the company website by March 31, 2015. Additional information about the settlement appears in Issue 547 of this Update. Issue 559
Refusing to certify the class, a California federal court has granted a partial motion to dismiss in a putative class action alleging that Ocean Spray Cranberries Inc. mislabels its “100% Juice” products as “No Sugar Added” despite adding fruit juice from concentrate. Major v. Ocean Spray Cranberries, Inc., No. 12-3067 (N.D. Cal., order entered February 26, 2015). The plaintiff argued that adding the concentrate and labeling the products “No Sugar Added” violates California law, which prohibits use of that phrase on food “containing added sugars such as jam, jelly, or concentrated fruit juice.” Instead, she asserted, Ocean Spray must include the disclaimer that their products are not low-calorie foods. Ocean Spray argued that the plaintiff did not rely on the “No Sugar Added” label when purchasing the products, and the court agreed, pointing to a deposition in which the plaintiff admitted that calorie content was not a motivating factor in…
A California federal court has dismissed a lawsuit arguing that PepsiCo Inc. should provide medical monitoring for a class of Diet Pepsi or Pepsi One purchasers because the company does not warn consumers that 4-methylimidazole (4-MEI), a compound in caramel coloring, has allegedly been linked to potential health risks in rodent studies. Riva v. PepsiCo, Inc., No. 14-2020 (N.D. Cal., order entered March 4, 2015). The case was severed from a consolidated class action after the plaintiffs decided to pursue medical monitoring and personal injury claims not included in the consolidated action. Information about the case’s transfer of venue appears in Issue 523 of this Update. The court determined that the plaintiffs lacked standing to pursue the claim because “they have not established that the alleged risk of bronchioloalveolar cancer (for which they seek lung scans and testing) is both credible and substantial.” The studies cited as support for the…
A consumer has filed a putative class action against Jim Beam Brands Co. and its owner Beam Suntory Import Co. alleging that the label indicating that the bourbon whiskey is “handcrafted” is misleading because the bourbon is produced with machines. Welk v. Beam Suntory Import Co., No. 15-328 (U.S. Dist. Ct., filed February 17, 2015). The complaint asserts that videos, photos and diagrams on Jim Beam’s website show that its bourbon “is manufactured using mechanized and/or automated processes, resembling a modern day assembly line and involving little to no human supervision, assistance or involvement.” The handcrafted claim leads consumers to purchase Jim Beam Bourbon falsely believing it to be of superior quality, so they are willing to pay a premium price, the complaint argues. The plaintiff alleges misrepresentation and violations of California’s False Advertising Law and Unfair Competition Law, and he seeks class certification, an injunction, an order for Jim…
A consumer has filed a proposed class action in California federal court alleging that Chiquita Brands, Inc. is responsible for the destructive practices of its “de facto subsidiary,” Cobigua, including the effects of its use of pesticides on the water supply of neighboring communities. Jablonowski v. Chiquita Brands, Inc., No. 15-262 (S.D. Cal., filed February 5, 2015). In the complaint, the plaintiff points to Chiquita’s efforts to represent itself as a responsible company that protects natural ecosystems—including its “famous blue sticker” designed to show that a banana meets the company’s “strict standards”—and he argues that the company indicates that its suppliers are held to the same standards. Cobigua, a Guatemalan company that apparently sells about 95 percent of its stock to Chiquita, “contaminates rivers and drinking water in the affected area with fertilizers, pesticides, fungicides, and organic matter” and “mixes fertilizers into its irrigation system every 14 to 21 days…
A consumer has filed a putative class action alleging the $1 surcharge that P.F. Chang’s imposes on its gluten-free menu items violates the Americans with Disabilities Act (ADA) by discriminating against those with celiac disease. Phillips v. P.F. Chang’s China Bistro, No. 15-344 (N.D. Cal., removed to federal court January 23, 2015). The complaint asserts that P.F. Chang’s maintains a separate gluten-free menu that charges $1 more than seemingly identical items on its regular menu and that it does not add a similar surcharge for other dietary accommodations. The plaintiff alleges that the surcharges lack justification because they “do not reflect additional costs of ingredients” and some of the items “are the same as the non-gluten free options or contain fewer ingredients” or are “naturally gluten free.” The plaintiff seeks certification of a California class and violations of the state’s Unruh Act, Disabled Persons Act and Unfair Competition Law. Issue…
