A federal court in California has determined that a consumer case alleging that Safeway was negligent for failing to notify customers of food recalls may proceed. Hensley-MacLean v. Safeway, Inc., No. 11-01230 (N.D. Cal., order entered April 7, 2014). According to the court, Safeway failed to justify a post-sale exception to California’s negligence law, which imposes a general duty of care. The plaintiffs claim that Safeway should—and could easily—notify customers of food recalls after they have purchased the recalled products because Safeway collects contact information from its loyalty card customers. Safeway argued that it had no duty to warn customers after they have taken the products out of the store. Rejecting the company’s argument, the court observed that Safeway could clearly foresee that its customers would consume the products purchased at its stores. The court also identified a number of previous decisions holding that the manufacturer’s duty extends beyond the…
Category Archives 9th Circuit
A federal court in California has granted beverage manufacturer Santa Cruz’s motion to dismiss a putative class action alleging that the “evaporated cane juice” (ECJ) listed on its beverage labels is merely sugar, thus violating the Food and Drug Administration’s (FDA’s) required use of an ingredient’s “common or usual name.” Swearingen et al. v. Santa Cruz Natural Inc., No. 13-4291 (N.D. Cal., order entered April 2, 2014). Finding that FDA had primary jurisdiction over the matter, the court cited a March 5, 2014, notice that the agency has reopened the comment period on its draft industry guidance pertaining to the use of the term ECJ on food labels. Details about FDA’s action appear in Issue 516 of this Update. According to the court, this notice clearly indicates that FDA is currently engaged in “active rulemaking on the issue” and intends to resolve the matter. Citing FDA’s superior resources to determine…
A federal court in California has dismissed the claims of one named plaintiff in a putative class action alleging that certain Costco Kirkland branded products are misbranded and deceptive, and narrowed the claims of the other named plaintiff. Thomas v. Costco Wholesale Corp., No. 1202908 (N.D. Cal., order entered March 31, 2014). The plaintiff whose claims were dismissed for lack of standing had alleged that the “0 grams trans fat” labeling on Kirkland Signature Kettle Chips was untruthful or misleading. The court agreed with the defendant that she had not cured the standing defects in her second amended complaint (SAC) and thus dismissed her claims with prejudice. Among other matters, she failed to (i) allege that the chips she purchased included any amount of trans fat or that she received a product different from the one as labeled, (ii) demonstrate that the label violated 21 C.F.R. § 101.13(h)(1), or (iii)…
A federal court in California has granted in part and denied in part the motion to dismiss filed in a putative class action against Whole Foods Market. Pratt v. Whole Foods Mkt. Cal., Inc., No. 12-5652 (N.D. Cal., order entered March 31, 2014). The claims relate to a number of 365 Everyday Value® products that the plaintiff purchased and involve the following allegedly unlawful or misleading label representations: “evaporated cane juice” (ECJ), “natural” and “no sugar added.” Because the plaintiff abandoned in his amended complaint all claims regarding the defendants’ whipped topping product, the court dismissed all claims based on this product with prejudice as to the plaintiff and without prejudice as to any putative class member. The “no sugar added” claims were thus dismissed, “as the only product alleged to have such a misleading claim was the whipped topping.” The court also emphasized that, per its August 2013 order, any claims…
A California resident has filed a putative statewide class action against H.J. Heinz Co. alleging that its Distilled White Vinegar is falsely advertised as “all natural” because it is made with genetically modified (GM) crops. Banafsheha v. H.J. Heinz Co., No. 14-2023 (C.D. Cal., filed March 17, 2014). Alleging that she paid more for the product due to the “all natural” labeling and would not have purchased the product had she known that it contains GM ingredients, the plaintiff claims, “Over 70% of U.S. corn crops are GM. Defendant sources its ingredients from U.S. commodity suppliers who supply GM crops. Large volume food manufacturers who wish to use non-GM ingredients must specifically source their crops, typically from Europe, or undertake the additional step and expense of verifying the supply from non-GM growers through identity preservation programs. In most instances, manufacturers who purchase only non-GM crops for their products specifically label the…
The University of Denver law professors who filed a challenge to Utah’s law barring audio or video recordings of purported animal abuse in agricultural operations have filed a second challenge to a similar law that recently took effect in Idaho. Animal Legal Def. Fund v. Otter, No. 14-0104 (D. Idaho, filed March 17, 2014). Both lawsuits challenge the so-called “ag-gag” laws on constitutional grounds. Utah’s attorney general has requested that the lawsuit filed in that state in 2013 be dismissed on standing grounds; the issue will be argued on May 15. Filed against the governor on behalf of animal rights organizations, the American Civil Liberties Union, Center for Food Safety, journalists, historians, and an “agricultural investigations expert,” the Idaho lawsuit contends that the statute “defines ‘agricultural production facility’ so broadly” that it would apply to “public parks, restaurants, nursing homes, grocery stores, pet stores, and virtually every public accommodation and…
The defendant in litigation alleging that it conceals the sugar added to its tea-like yerba mate products by listing the ingredient as “organic evaporated cane juice” has removed the action to federal court. Cowan v. Guayaki Sustainable Rainforest Prods., Inc., No. 14-1248 (N.D. Cal., removed March 17, 2014). The plaintiff, a California resident with a family history of diabetes, alleges that she purchased the products relying on the ingredients listed on the product labels and paid more for them “because she believed the Class Products contained lesser amounts of sugar and was [sic] healthier for her” than comparable products. Seeking to represent a nationwide class of consumers, the plaintiff claims that Guayaki releases misbranded products into the stream of commerce and that the company violates the Unfair Business Practices Act, California False Advertising Act and Consumers Legal Remedies Act. She also brings causes of action for negligent misrepresentation and breach of…
A federal court in California has refused to certify four classes of Starbucks employees in litigation alleging that its rest break policy and scheduling practices, and meal period policy and practices violated the state’s Labor Code and Unfair Competition Law. Cummings v. Starbucks Corp., No. 12-6345 (C.D. Cal., decided March 24, 2014). As to the proposed meal break class, the court found that the plaintiff’s “second theory of liability—that Starbucks had a practice of failing to provide timely meal breaks—does not present a common question of law” because “there is no common answer as to why employees took a late meal break, and individualized inquiries into each late meal break would be required.” The court also found as to this proposed class that the plaintiff’s claims did not meet the typicality requirement because her alleged late meal break claims were due not to a defective policy, but “because of unique…
While a federal court in California has dismissed a request for injunctive relief in a consumer fraud action against Wallaby Yogurt Co. for lack of standing, it will allow the first amended complaint’s remaining claims to proceed. Morgan v. Wallaby Yogurt Co., Inc., No. 13-0296 (N.D. Cal., order entered March 13, 2014). Additional details about the court’s ruling on the plaintiff’s original complaint appear in Issue 500 of this Update. As to the request for prospective injunctive relief, the court agreed with the defendant that the plaintiffs will not be deceived as to future product purchases because they now know that “evaporated cane juice” is added sugar. So ruling, the court acknowledged a split among the district courts in the circuit on this issue. The court also expressly disagreed with Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal. Sept. 19, 2013), to the extent that the court (i) found that…
A federal multidistrict litigation (MDL) court in California has granted POM Wonderful’s motion to decertify a class of claimants alleging that they were misled by health-benefit representations for the company’s pomegranate juice. In re POM Wonderful LLC Mktg. & Sales Practices Litig., MDL No. 2199 (C.D. Cal., order entered March 25, 2014). Details about the motion appear in Issue 516 of this Update. According to a news source, the court found that (i) the plaintiffs’ two damages models failed to support a class action, and (ii) claims that consumers allegedly paid an inflated price for the company’s juice failed to explain how the company’s health-benefit representations caused damage. As to the practical effects of proceeding as a class action, the court reportedly stated, “Here, Plaintiffs acknowledge that, based on the volume of product sold, every adult in the United States is a potential class member. These millions of consumers paid…
