A California federal court has dismissed without prejudice a lawsuit alleging Kellogg Sales Co. misleads consumers as to the characterizing flavor of its Bear Naked V'Nilla Almond granola, finding that the plaintiff could not support his allegation that the product does not contain sufficient amounts of vanilla. Zaback v. Kellogg Sales Co., No. 20-0268 (S.D. Cal., entered October 29, 2020). The plaintiff alleged that the image of vanilla beans on the granola packaging misleadingly implied that "real vanilla derived exclusively from vanilla beans" was the only characterizing flavor. The court had previously dismissed the "allegation that merely because vanilla is expensive Kellogg would have included vanilla on the Product’s ingredient list" and instead assessed the plaintiff's argument that Kellogg "admitted" the product did not contain sufficient vanilla to flavor the granola. "The 'admission' boils down to this: Kellogg’s use of 'Natural Flavors' on the Product’s ingredient list means the product does…
Category Archives 9th Circuit
A consumer has alleged that Frito-Lay Inc.'s Baked Cheddar and Sour Cream chips use diacetyl to obtain the sour cream flavor without referring to diacetyl as a characterizing flavor. Vado v. Frito-Lay Inc., No. 20-2055 (S.D. Cal., filed October 19, 2020). The complaint asserts that artificial diacetyl, which provides a butter flavor, is used to enrich the taste of sour cream that has been produced from cows raised on a feedlot rather than a pasture. The plaintiff argues that the diacetyl is thus a characterizing flavor of the chips and alleges the chips should be labeled "Cheddar and Artificial Sour Cream Flavored." The complaint also distinguishes the baked variety of the chips from the brand's conventional version, which "actually contains sour cream and unlike the Mislabeled Product, real sour cream is listed as an ingredient on the back-label ingredient list." The plaintiff alleges violations of California consumer-protection statutes as well…
A California federal court has dismissed a putative class action alleging that Mott's apple juices and applesauce are not "natural" as marketed because they contain trace amounts of pesticides. Yu v. Dr Pepper Snapple Grp. Inc., No. 18-6664 (N.D. Cal, entered October 6, 2020). The complaint was previously dismissed without prejudice, and the amended version contained the "same five causes of action" but "added two generic surveys to the allegations." The court examined the additional surveys but was unconvinced that they provided enough support to allow the case to move forward. "The 2015 Consumer Reports Survey arguably undermines, rather than supports, Plaintiff’s argument about the reasonable consumer’s interpretation of the word 'natural,'" the court held. "It states, 'Consumers were asked about their perception of the natural and organic labels. The organic food label is meaningful, is backed by federal regulations, and verified by third-party inspections; the natural label, however, is…
Grand Brands Inc. allegedly markets its True Lemon powdered drink mixes as "naturally flavored" despite containing malic acid, a plaintiff alleges. Tedesco v. Grand Brands Inc., No. 20-1928 (S.D. Cal., filed September 28, 2020). The complaint asserts that Grand Brands fails to identify the type of malic acid included in its products and alleges that "[e]ven if reasonable consumers were to investigate the Defendant’s claims on the Products’ front labels by scrutinizing the ingredient statements on the back, consumers would still be unable to verify whether the Products contained artificial flavoring." The plaintiff further asserts that "analytical testing" of the products "confirmed that Defendant adds the artificial flavoring dl-malic acid to each of the Products." The eight claimed causes of action include alleged violations of California consumer-protection statutes as well as intentional and negligent misrepresentation.
The Center for Food Safety and several food retailers have filed a lawsuit against the U.S. Department of Agriculture (USDA) alleging that the agency "fell far short of fulfilling the promise of meaningful labeling" of bioengineered (BE) foods with its 2019 labeling rules. Natural Grocers v. Perdue, No. 20-5151 (N.D. Cal., filed July 27, 2020). The complaint takes issue with four aspects of USDA's BE labeling rule. First, the plaintiffs allege that allowing companies to use QR codes to disclose BE ingredients will "discriminate against major portions of the population—the poor, elderly, rural, and minorities—with lower percentages of smartphone ownership, digital expertise, or ability to afford data, or who live in areas in which grocery stores do not have internet bandwidth." The plaintiffs also object to the terminology USDA chose. The rule uses "bioengineered" rather than "genetically engineered" (GE) or "genetically modified" (GM) and prohibits the use of the latter…
A plaintiff has filed a putative class action asserting that The Kroger Co.'s ground coffee packaging and labeling mislead consumers as to the amount of cups of coffee they can produce. Lorentzen v. Kroger Co., No. 20-6754 (C.D. Cal., filed July 28, 2020). "The scheme is straightforward," the complaint alleges. "Defendant sells the Products with the representation they contain enough ground coffee to yield a specific number of servings (e.g., 225 cups). This representation is prominently displayed on the front panel of the coffee canister. However, if the back-panel brewing instructions are followed, the canister produces significantly less than what is advertised on the front panel." For example, the plaintiff asserts, one product's labeling indicated it could be used to make "about 225 cups," but the contents would make about 110 cups if the direction of one tablespoon of coffee per six ounces of water is followed. The plaintiff seeks…
A California court has reportedly ruled that Californians can buy foie gras from out-of-state sellers and have it delivered within the state to avoid the state's ban on sales or gifts of foie gras. The ruling applies only to individual purchasers, as restaurants and retailers are still prohibited from selling foie gras, according to the Associated Press. “There is no principled way to distinguish between foie gras purchased out of state and transported into California by the purchaser and that which is delivered by a third party,” the court reportedly held.
A consumer has filed putative class action alleging that Vilore Foods Co. Inc. misleadingly marketed Kern’s Nectar canned beverages as natural because they contain malic acid, “a synthetic chemical that is used to make manufactured food products taste like real fruit.” Gross v. Vilore Foods Co. Inc., No. 20-0894 (S.D. Cal., filed May 13, 2020). The complaint asserts that the products violate the federal Food, Drug and Cosmetic Act because they “contain additional flavoring ingredients that simulate and reinforce the characterizing flavor,” thus requiring Vilore “to disclose those additional flavors rather than misleadingly suggest that the Product is flavored only by the labeled natural juices.” A footnote indicates that the can packaging contained the statement as of 2017 but the “manufacturer apparently has since deleted ‘100% Natural’ on the retail can labels.” The plaintiff seeks damages and injunctions prohibiting deceptive advertising and requiring corrective advertising for alleged violations of California’s…
The Humane Society of the United States (HSUS) has filed a lawsuit arguing that a 2015 assessment issued by the U.S. Department of Agriculture (USDA) “ignores the most logical alternative” in determining the national approach to combating avian influenza in poultry-production facilities. Humane Society of U.S. v. USDA, No. 20-3258 (C.D. Cal., W. Div., filed April 8, 2020). HSUS argues that USDA failed to adequately detail alternatives to its approach to a bird flu pandemic and instead chose as the “preferred alternative” a practice that includes shutting down a facility’s ventilation system, allegedly resulting in the birds inside suffocating and “essentially cook[ing] the conscious birds to a protracted, and unnecessarily torturous death.” HSUS seeks a declaration that USDA’s action was arbitrary and capricious and an abuse of discretion.
Multiple labor unions have reportedly filed a lawsuit alleging that Washington’s Departments of Health and Labor & Industries failed to provide guidance that would protect farmworkers from increased risks of COVID-19 infection. The unions seek an injunction that would require the agencies to expedite oversight through emergency rulemaking. “Lack of enforceable rules regarding social distancing, protective face masks, access to soap and water, and to environmental cleaning allows conditions to continue in which virus can spread easily and quickly,” the complaint states, according to Bloomberg.
