A federal court in California has significantly narrowed the consumer-fraud claims that may be asserted against Frito-Lay involving a number of its snack products labeled as “All Natural,” “0 Grams Trans Fat” and “No MSG.” Wilson v. Frito-Lay N. Am., Inc., No. 12-1586 (N.D. Cal., order entered October 24, 2013). All claims dismissed were with prejudice. The court dismissed claims based on products the plaintiffs did not purchase, because they failed to specify how or whether the 85 products added in their second amended complaint were substantially similar to the purchased products. The court also dismissed any claims based on statements the company made on its website. According to the court, the Food and Drug Administration (FDA) may have warned other companies about whether their Websites constituted labeling, but it had not done so as to the defendant’s products. The court also said, “The website address appears below Defendant’s physical address,…
Category Archives 9th Circuit
Three days after the U.S. Food and Drug Administration (FDA) filed a motion for emergency stay pending appeal before the Ninth Circuit, the federal district court that had established November 30, 2013, as the deadline for the agency to publish notices of proposed rulemaking (NPRM) for specific food safety rules under the Food Safety Modernization Act denied the motion for stay pending appeal that FDA filed before it in September. Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., order entered October 21, 2013). Details about the emergency stay request based on delays attributable to the federal government shutdown appear in Issue 501 of this Update. According to the district court, FDA failed to show that it would be irreparably injured absent a stay. The court recognized that the agency was unprepared to issue a final rule on the intentional adulteration of food by the November 2013 deadline, “But…
A California resident has filed a putative nationwide class action against Lifeway Foods, Inc., alleging that many of its kefir, lassi and frozen yogurt products are misbranded under federal law and the state’s Sherman Law because they list as ingredients “Evaporated Cane Juice” or “Organic Cane Juice,” terms that purportedly render the products illegal. Figy v. Lifeway Foods, Inc., No. 13-4828 (N.D. Cal., San Francisco Div., filed October 17, 2013). The plaintiff avers that he and the class purchased these illegal products at a premium price and have sustained economic damages under the unlawful business acts and practices law. According to the complaint, the “unlawful sale of an illegal product is the only element necessary for the UCL claim. No reliance is necessary.” The plaintiff requests restitution, injunctive relief, corrective action, attorney’s fees, costs, and interest.
A federal court in California has denied the request of General Mills, Inc. to stay the proceedings in three putative class actions alleging that it misleads consumers by promoting various products as “100% Natural” given ingredients that are genetically modified or highly processed, such as high-fructose corn syrup, high-maltose corn syrup and maltodextrin. Rojas v. General Mills, Inc., No. 12-5099 (N.D. Cal., order entered October 9, 2013); Bohac v. General Mills, Inc., No. 12-5280, and Janney v. General Mills, Inc., No. 12-3919 (N.D. Cal., orders entered October 10, 2013). So ruling, the court rejected the defendant’s request that it apply the primary jurisdiction doctrine, finding that (i) the issue of whether a reasonable consumer would be misled by the company’s product promotions was within the court’s purview, and (ii) it did not appear the U.S. Food and Drug Administration was inclined to decide anytime soon what the term “natural” encompasses. In Rojas,…
A federal court in California has dismissed certain claims, with leave to amend, in putative class litigation challenging various aspects of labels for Wallaby Yogurt Co. and Trader Joe’s Co. food products; it has refused to abstain from deciding the matters under the primary jurisdiction doctrine. Morgan v. Wallaby Yogurt Co., Inc., No. 13-296, Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., orders entered October 10, 2013). Both suits include claims, among others, that the companies mislead consumers by using “evaporated cane juice” instead of “sugar” on their product labels. In Wallaby, the court rejected the defendant’s argument that the plaintiffs lacked standing to bring their claims because they had not plausibly alleged actual injury. Wallaby apparently said, “Plaintiffs paid for food products. They consumed the products without incident or physical injury. The goods were not tainted, spoiled, adulterated, or contaminated. They do not allege that the ingredients were…
A federal court in California has preliminarily approved the settlement of shareholder claims that Diamond Foods, Inc. “deliberately understated the costs of walnuts and improperly accounted for payments made to walnut growers to increase apparent profits and maintain higher share prices” in anticipation of the anticipated purchase of Pringles with company stock. In re Diamond Foods, Inc. Securities Litig., No. 11-5386 (N.D. Cal., order entered September 26, 2013). Additional details about the litigation appear in issues 464 and 482 of this Update. Under the terms of the agreement, the defendants will pay to the class $11 million and distribute 4.45 million shares of Diamond common stock—valued at $85.1 million as of August 2013. According to the court, while the maximum aggregated damages totaled some $430 million, the settlement is reasonable in light of “Diamond’s weakened financial condition.” It apparently has just $7.2 million in cash and cash equivalents and carries…
A federal court in California has denied the motion to dismiss filed in a putative nationwide class action alleging that Blue Diamond Growers misled consumers by labeling its almond milk products and snack foods as “all natural” and representing that they contain “evaporated cane juice,” (ECJ) in violation of federal labeling requirements incorporated into state law. Werdebaugh v. Blue Diamond Growers, No. 12-2724 (N.D. Cal., San Jose Div., order entered October 2, 2013). The court determined that the claims were not preempted by federal law or the primary jurisdiction doctrine, the plaintiff had standing to pursue claims regarding substantially similar products that he did not purchase, the claims were pleaded with sufficient particularity, and the defendant’s conflict-of-laws challenge was premature.
A federal court in California has dismissed with limited leave to amend the second amended complaint filed on behalf of a putative nationwide class against Welch Foods, alleging that the company’s juice, beverage, spread, and jelly labels and Website violate California labeling law by including “no sugar added,” “all natural,” “no artificial flavors,” and “high in antioxidants” statements. Park v. Welch Foods, Inc., No. 12-6449 (N.D. Cal., order entered September 26, 2013). Agreeing that the complaint sounded in fraud and must comply with the heightened pleading standard of Federal Rule of Civil Procedure 9, the court noted that “Welch is after the who, what, where, when, and how surrounding the circumstances in which Plaintiffs were misled.” The company apparently argued that “portions of the complaint are generously and blindly appropriated from similar complaints filed in this district,” and that a 15-page limit would be appropriate. Still, “Welch wants to know specifically…
Calling it “ridiculous to say that consumers would expect snack food ‘made with real fruit’ to contain only ‘actual strawberries or raspberries,’ rather than these fruits in a form amenable to being squeezed inside a Newton,” a federal court in California has dismissed without leave to amend consumer fraud claims against the company that makes Nabisco strawberry and raspberry Newton cookies. Manchouck v. Mondeléz Int’l Inc., No. 13-2148 (N.D. Cal., decided September 26, 2013). The court determined that the plaintiff had Article III standing without alleging physical injury because this is not the sole measurement of injury-in-fact and the plaintiff alleged that she had paid a premium price for the products which she would not have purchased “at that price point absent the alleged misstatements.” The court agreed with the defendant, however, that the plaintiff had failed to meet the plausibility pleading standard set forth in Ashcroft v. Iqbal, 556 U.S.…
A California resident has filed a putative class action on behalf of statewide and nationwide classes alleging that Safeway, Inc. labels and promotes its Open Nature waffle products as “100% Natural” while using the synthetic chemical preservative, alternatively referred to as sodium acid pyrophosphate and disodium dihydrogen pyrophosphate, as an ingredient. Richards v. Safeway, Inc., No. 13-4317 (N.D. Cal., filed September 18, 2013). According to the plaintiff, the chemical “has various applications—from its use in leather treatment to remove iron stains on hides during processing, to stabilizing hydrogen peroxide solutions against reduction, to facilitating hair removal in hog slaughter, to feather removal from birds in poultry slaughter, to use in petroleum production.” According to the plaintiff, the ingredient is not listed on the front of the package with the other ingredients. Claiming that he relied on the company’s “100% Natural” claims in purchasing products for which he paid a premium, the…
