California residents have filed a putative nationwide class action against Late July Snacks LLC, alleging that the company’s snack products are misbranded because they include “organic evaporated cane juice” on their ingredient lists in violation of the state’s Sherman law, which incorporates the federal Food, Drug, and Cosmetic Act. Swearingen v. Late July Snacks LLC, No. 13-4324 (N.D. Cal., filed September 18, 2013). The plaintiffs contend that regardless whether the products actually contain sugar or dried sugar cane syrup as sweeteners, the Food and Drug Administration (FDA) requires that these terms, and not “evaporated cane juice,” be used on product labels. They cite a 2000 FDA guidance letter and warnings that FDA subsequently provided to companies using the prohibited term on food labels. They assert that the state’s unfair competition law does not require that they relied on the labels in making their purchasing decisions, just that they would not otherwise have purchased an unlawful product, “absent the Defendant’s failure to disclose…
Category Archives 9th Circuit
A federal court in California has denied the motion to dismiss defendants’ counterclaims filed by plaintiff sugar producers in a dispute between them and companies that make high-fructose corn syrup (HFCS) and promoted it in a national campaign claiming that “HFCS is corn sugar,” “HFCS is natural,” and “sugar is sugar.” W. Sugar Coop. v. Archer-Daniels Midland Co., No. 11-3473 (C.D. Cal., order entered September 16, 2013). The court ruled that (i) because the counterclaims do not allege fraud, they satisfy the pleading requirements of Federal Rule of Civil Procedure 8; (ii) whether the plaintiffs’ statements, at issue in the counterclaims, are immune from liability under the Noerr-Pennington doctrine requires further factual development and is thus premature; (iii) the counterclaims’ allegations do not demonstrate that the plaintiffs are immune from liability under the Communications Decency Act of 1996 in that they “neither demonstrate that Plaintiffs ‘passively displayed’ the statements [authored by…
A federal court in California has granted in part and denied in part the motion to dismiss filed by Dole Food Co. in a putative nationwide class action alleging that the company misbrands a number of its fruit products by making certain “all natural,” “fresh,” nutrient content, antioxidant, sugar-free, and health claims, as well as failing to disclose that the products contain artificial additives, chemical preservatives and other artificial ingredients. Brazil v. Dole Food Co., No. 12-1831 (N.D. Cal., order entered September 23, 2013). According to the court, the plaintiff has standing at this stage of the proceedings to bring claims as to products he did not purchase, ruling that he may proceed with “substantially similar claims based on both products he purchased and substantially similar products he did not purchase” on behalf of unnamed class members. The court dismissed with prejudice claims based on the company’s website statements because the…
On reconsideration, a federal court in California has dismissed a lawsuit against Chobani, Inc., in a putative class action alleging that its yogurt products are mislabeled because they include “evaporated cane juice” (ECJ) as an ingredient and state that they have no added sugar and contain only “natural ingredients.” Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal., San Jose Div., order entered September 19, 2013). Details about the order the court reconsidered appear in Issue 491 of this Update. The court dismissed the Unfair Competition Law (UCL), False Advertising Law (FAL) and Consumers Legal Remedies Act (CLRA) claims without prejudice and gave the plaintiffs 21 days to file a third amended complaint. Claims for unjust enrichment and violation of the Song-Beverly and Magnuson-Moss Warranty Act were dismissed with prejudice. Essentially, the court found that the plaintiffs lacked standing to pursue their UCL, FAL and CLRA claims because they failed to…
A federal court in California has granted a motion for final settlement approval in a nationwide class action alleging that Kellogg Co. falsely advertised its Frosted Mini-Wheats cereal products as a food that could help improve children’s attentiveness by 20 percent. Dennis v. Kellogg Co., No. 09-1786 (S.D. Cal., order entered September 10, 2013). Details about prior rulings in the case appear in Issue 483 of this Update. The court had previously given reluctant approval to the preliminary settlement, concerned that the class relief appeared to have diminished after remand from the Ninth Circuit, with attorney’s fees appearing to remain constant—the original settlement had a cash value of about $10.5 million with $2 million for attorney’s fees and claims administration; the revised settlement has a cash value of $4 million with $1.5-2 million reserved for attorney’s fees and claims administration. According to the court, the plaintiffs demonstrated that “the seemingly unchanged total…
A second amended complaint has been filed in a putative nationwide class action alleging that The Hain Celestial Group’s food and beverage product labels render their products misbranded and further mislead consumers because they use the terms “No Trans Fat,” “Evaporated Cane Juice” or “All Natural” in violation of state law. Smedt v. The Hain Celestial Group, Inc., No. 12-3029 (N.D. Cal., filed August 30, 2013). Details about the court ruling dismissing the claims with leave to amend appear in Issue 495 of this Update. The plaintiff has omitted any claims that the company’s website misled consumers and has otherwise attempted to address the court’s concerns about ambiguous fraud allegations in her initial pleadings.
While dozens of consumers have purportedly experienced nausea and cramps after eating Chobani Greek Yogurt products allegedly contaminated with mold, a California resident without apparent physical injury has filed a putative class action against the company to recover damages for purchasing a defective product. Green v. Chobani, Inc., No. 13-2106 (S.D. Cal., filed September 9, 2013). Plaintiff Harold Green alleges that he purchased 16 cups of yogurt subject to a company recall and that he and his family members consumed some of them before the September 5, 2013, recall date. After receiving notice of the recall, the plaintiff claims that he returned six cups to the store. Seeking to represent a nationwide class and statewide subclass of purchasers, the plaintiff alleges negligence and breach of the implied warranty of merchantability for food. He requests restitution, disgorgement, interest, compensatory damages, attorney’s fees, and costs. See NBCNews.com, September 10, 2013. Issue…
The Ninth Circuit Court of Appeals has affirmed a lower court ruling denying the request for a preliminary injunction to halt the application of a California statute that forbids the sale of products resulting from force feeding a bird to enlarge its liver and prohibits force feeding birds to enlarge their livers beyond normal size. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12-56822 (9th Cir., decided August 30, 2013). While the court dismissed the governor and state as defendants on the basis of immunity, it agreed with the district court that the state attorney general was not immune from suit under the Eleventh Amendment. Additional information about the lawsuit appears in issues 446 and 454 of this Update. Because the court found that the plaintiffs, out-of-state foie gras producers and a California restaurant that sold the product before the law took effect, were not likely…
A federal court in California has denied the motion to dismiss filed by J.M Smucker Co. in a putative class action alleging that it misleads consumers by labeling four of its Crisco® oil products as “All Natural” because they are purportedly made with genetically modified (GM) corn, canola and soy crops and because they are highly processed. Parker v. J.M. Smucker Co., No. 13-690 (N.D. Cal., order entered August 23, 2013). Finding that the amended complaint met the plausibility pleading standard, the court ruled that the plaintiff had standing to pursue claims as to products she had not purchased because they were sufficiently similar. In the court’s view, “They are all the same kind of product. They all have highly similar labels. Plaintiff alleges the same actionable conduct as to each of them.” The court also rejected the defendant’s contention that the claims were preempted in light of the Food…
A federal court in California has narrowed the issues in litigation filed by Monster Beverage Corp. against Dennis Herrera, San Francisco’s city attorney, granting in part and denying in part Herrera’s motion to dismiss. Monster Beverage Corp. v. Herrera, No. 13-786 (C.D. Cal., order entered August 22, 2013). Additional details about the dispute between the litigants appear in issues 461, 482 and 483 of this Update. The court rejected Herrera’s claims that Monster Beverage lacked standing to bring a declaratory judgment action as to issues raised by his threats to sue the company if it fails to change its energy drink products by reducing the caffeine levels and to alter its labeling and advertising. The court also found that the issues are ripe, stating “The dispute here is not abstract and the lawsuit is not premature. The issue here, whether Monster must comply with Herrera’s demands pursuant to California state…
